*1 BOYLE, PLAINTIFF-APPELLANT, ALBERTA J. CHARLES BREME, DEFENDANT-RESPONDENT. Arguеd March July 1983 Decided 1983.
Joseph argued Asbell, for appellant (Joseph Asbell cause attorney; Asbell, I. briefs). Yale on the Gercke, Counsel, argued
John R. County Asst. the cause for (Steven Weinstein, Counsel, respondent D. at- torney).
PER CURIAM.
*2
in
by Judge
opinion
We affirm for the reasons stated
Fritz
N.J.Super.
(App.Div.1982).
below. 187
We note that when
the Legislature
provision
co-employee immunity
addеd a
1961, L.1961,
Compensation
(codified
Workers’
Act in
c. 2
34:15-8),
employers
N.J.S.A.
some
had medical clinics staffed
employee
Legislature
doctors and nurses.
If the
had intended to
exclude this class of
co-employees,
expressed
could have
Legislature
intent.
Indeed the
made a
review of
comprehensive
1979, L.1979, 283,
the Act in
c.
without
modifying
co-employ
immunity provision desрite
pronouncement
Bergen
ee
Miller,
denied,
N.J.Super.
(App.Div.),
certif.
For reversal HANDLER —1.
HANDLER, J., dissenting.
By affirming in this the reasoning case on below, the opinion this Court a very endorses literal and strict interpretation of the coemployee immunity provision of the statute, 34:15-8,1 workers’ thereby N.J.S.A. employee right denies an to maintain a cause of action for 1N.J.S.A. 34:15-8 provides pertinent part: injury If an or death article, under this shall compensable person not be liаble to at common law or otherwise on account of such anyone injury occurring or death for act or omission while such was person injured in the same killed, as the for intentional employ person except wrong. Amended L.1961, 14, § 1; L.1979, c. c. eff. Jan. p. § 2, 19, 1980. against a physician happens who to be employed the same employer professional and whosе activi- ties and responsibilities are wholly unrelated to those of the injured employee. Because I not do believe that the coemployee immunity statute should be understood to bar appellant from maintaining a cause of action for medical malpractice against physician, such a I dissent.
Appellant Boyle Alberta was employed аs Food Service Worker at County’s Psychiatric Hospital in Lakeland. 12,1980 May slipped On she dining and fell in the room facility injuries Immediately sustained to her left side. fall, after her appellant was taken to the Camden Health Center and (“the Services treated in the medical clinic *3 dispensary”) respondent Breme, Charles Breme. a licensed to medicine in New Jersey, employed by was County Camden the Director of Emergency Medical Services Camden Health County Center and was charged Services running dispensary with Complex.2 at Lakeland After the appellant accident filed a claim for workers’ com pensation benefits against County. Camden She also com injuries an against menced action defendant for caused respondent’s malpractice. granted The trial court re spondent’s judgment, ruling motion for that the coem summary ployee provision immunity of N.J.S.A. 34:15-8 barred the claim parties because on employer. Relying both worked for the same Miller, den., Bergen v. 104 53 N.J.Super. (App.Div.), 350 certif. Appellate Boyle N.J. 582 v. Division affirmed. Breme, N.J.Super. acknowl (App.Div.1982). Although edging arguments exception sound for an policy finding made, a N.J.S.A. 34:15-8 where claim of medical following 2This was facility established in 1980 a decision early against to self-insure all claims. The clinic employee compensation designed injuries building was to treat work-related a employees’ Lakeland to administer Complex thereby employee compensation in a more cost effectivе manner. plan integrity “threaten the Appellate Division refused to [the exception in compensation] by presuming workers’ scheme an to be Id. at coemployee happens the case of a who a doctor.” adjustment should be left 132. It was “convinced ... Legislature.” Id. at to the 133. coemployee question this case is whether the critical Compen-
immunity provision of N.J.S.A. 34:15-8 Workers immunizing Act doctor sation is to be understood as a in the course liability negligent performed for acts coemployee. treatment of a professional, medical coemployee Legislature provision In 1961 added a Act, L.1961, c. which immunity Compensation to the Workers’ account of a “expressly preclude[d] right recovery ... cоmmon or otherwise compensable injury or death at law wrong.” against employee except in cases intentional fellow Muscarelle, It N.J.Super. (App.Div.1961). Miller against in tort a fellow em thus abolished action “cause[s] burdening the ... resulted in ployee frequently ha[d] [that] superimposed law employer indirectly damages with common either liability by reason of his workmen’-s the sued ... practical obligation indemnify moral or legal, brought rela coemployee This amendment employee.” Ibid. purpose underlying work tionships general into concert with a is, expeditious and certain compensation, to afford ers imposition injured employees in return redress absolute, limited, Boyle G. liability upon employers. their but *4 Co., 104, (1962); v. 37 N.J. 112 see alsо Seltzer Trucking & K. Isaacson, 308, (App.Div.1977). N.J.Super. 147 313 employ the negligence from
By shifting liability employee implicitly acknowledges the employer, ee to his the statute superi- of “respondent the common law doctrine application is the actions or,” employer or master liable for namely, that the course of their undertaken the employees of its or servants (1982); 159 Klitch v. v. 91 N.J employment. Kay, Di Cosala 1916); Murray, 117 Betts, (E. Snell v. 89 348 & A. N.J.L.
573 N.J.Super. 268 (Law Div.1971), aff’d, 121 N.J.Super. (App. 215 Div.1972). That imposes liability doctrine ultimate the mas directs, Starego supervises ter who and controls its servants. Soboliski, 11 N.J. 29, cert. den., 925, U.S. S.Ct. (1952), 345 73 784, 97 L.Ed. & see Vreeland v. Wilkinson Gaddis (1953); Co., Torts, 129 N.J.L. Law of (Sup.Ct.1942); Prosser, W. (4th 1971). 460-61 ed. relationship employer company physi- between an and substantially
cian differs
other employer-еmployee
rela-
tionships to which the
apply.
doctrine
master/servant would
work,
directing
Rather
than
supervising
the doctor’s
the
employer
medical,
lacks
aspects
control over the
patient-treating
of its
physician’s
treating physician
house
work.
In fact
the
independent,
professional.
skilled
As Justice Francis ob-
Gimbel’s, Inc.,
served in Newmark
54 N.J. (1969):
judgment
diagnosing
The dоctor ...
best
exercises his
ailment
patient’s
prescribing
furnishing
and sometimes
methods
medicines or other
disability,
of treatment which he
and in some measure
will relieve or cure
believes,
hopes,
the condition. His
is not mechanical or routine because each
performance
judgment
individual
and formulation of an informed
patient requires
study
or mental
or condition
and the course
physical
disability
presented,
treatment
In
needed....
sense
furnish services in
form
[doctors]
primary
of an
of the
condition
based
their
opinion
analysis
patient’s
experienced
objective
subjective
at
and in the form recommended and,
complaints,
Gagne v.
times,
administered medicines and treatment. Compare,
personally
(1954).
callings,
43 Cal.2d
federal and state but also codes of ethics their law, oblige That them decline to acts рrofessions. duty may perform required their [Id. employers. 71] opinion clearly independence Justice Pollock’s indicated that profession its members owe duties *5 that public by employer the could not overriden an directive be medi- and conflicted with established public policy contravened Id. at 72.3 cal practice. over the control the by emplоyer
Because of
lack of
exerted
patient-treating
aspects
physician’s
the
and
house
medical
work,
profession,
ascribed to the medical
independence
the
skill,
the
care and
associated with
degree
medicine,
physician,
treating
house
when
other
master-
simply
cannot be
as a servant
in a
employees,
viewed
capаcity
relationship.
Boyle
Dr. Breme treated
servant
liable,
pri-
should
other
physician
consequently,
be,
malpractice
doctor-pa-
because the
vate doctor would
for his
entirely
obligations,
rights and duties
relationship
tient
entails
coemployee.4
as a
those
with his status
distinct from
associated
capacity
I
a dual
would ascribe
for
independеntly
can be
liable
therefore determine that he
held
an
em-
injured
third
action
party
in a
Barrett,
Lyon v.
89 N.J.
(1982) (discussing
ployee. Cf.
applies
employee-employer
to an
capacity
dual
doctrine as
professionals
agreed
owe
the rest of
3Justice Pashman
with
the Court
public
independent
obligations
legal
members
ethical
contrary
public
emplоyer’s
superseded
directive that
cannot be
newly
However,
application
policy.
its
he
dissented from
Court’s
summary judgment.
principle
on
Pierce Ortho
announced
a motion
J.,
(1980) (Pashman,
dissenting).
Corp.,
He
Pharmaceutical
84 N.J.
[independent]
professional
stan
noted
‘codes of
ethics’
establish
[that]
“four
humans,”
experimentation
participation
dards
in clinical
for the
of doctors
public policy’
‘clear
[and]
“each
mandate
[code
a]
found that
was
summary judgment.”
provides
denying
at 80.
Id.
defendant
the basis
special obligations
in Justice
of a
are mentioned
doctor
4Some of
Inc.,
N.J. 585
ante at
v. Gimbels
Francis’ discussion Newmark
may
patient
from the
573.
differ
The standard of
a doctor to a
care owed
relationship
upon coemployees.
normally
care
attendant
standard of
treating
may
obligations
impose
fiduciary
and restrictions
certain
occupies
respect
physician by
position
with
that he
virtue
158-173,
Physicians, Surgeons,
patient.
generally
Etc. §§
See
61 Am.Jur.2d
290-305,
200-301,
(1981).
pp.
p.
§§
332-448
*6
relationship).5
promotes
This result
public
a sound
policy
objectives
accords with the
underlying workers’ compensation
legislation. The
Supreme
Colorado
Court’s recent discussion in
Wright
Jefferson,
v. District Ct. In and For
of
Cty.
661 P.2d
(Colo.1983),
1167
is particularly instructive:
exposing
A rule
a
acting
to
for
committed while
liability malpractice
as a
underlying
doctor is not inconsistent with
company
either the
policies
general
Workmen’s
Act or its
of
rule
The
Compensation
co-employeе immunity.
worker’s
scheme is based
a mutual
of common
compensation
compromise
rights
law
and workers: when an
by employers
industrial accident
occurs,
of
without
fault and the
employer accepts liability
worker surrenders
proof
causes
action in tort for a
potential
more limited schedule of benefits. While
justify
most
accidents have certain characteristics
workplace
which
tort immuni-
for
ty
these characteristics are not
when
employers
co-employees,
present
the tortfeasor is a
doctor. Five salient distinctions are discussed at
acknowledge,
5I
as the
Division
Appellate
did,
that
question
whether
a
dual
doctrine to
in
apply
capacity
company physician
strong
face of a
statute has
coemployee immunity
a
produced
variety
conflicting
ascribing
For
views.
a
opinions
dual
capacity see,
example,
Wright
(Colo.1983);
Dist.
In
Jefferson,
v.
Ct.
& For
661
Cty.
P.2d 1167
Rogers,
(Cal.Ct.App.1972);
Hoffman v.
22
99
655,
455
Cal.App.3d
Cal.Rptr.
(Ind.Ct.App.1979);
Ross v.
388
Schubert,
N.E.2d 623
McCormick v. Caterpil
lar
85
Co.,
Tractor
Ill.2d
53
352,
207, 211,
876,
Ill.Dec.
423 N.E.2d
880
(Ill.1981) (Simon,
dissenting);
J.,
309,
Jenkins v.
104 Wis.2d
311
Sabourin,
(Wis.1981) (Abrahamson,
dissenting);
600,
N.W.2d
607
Proctor
Ford
J.,
(Ohio Ct.App.1972),
Co.,
Motor
32 Ohio
length Doctors Be Rule in New York: Should Jenkins, Company No-Duty 675-680 and support Considered 9 Hofstra L.R. 665, Co-employees?, of the dual approach. adoption capacity on the fact that most scheme is based worker’s First, compensation assignment making in a manner accidents occur without fault or workplace injuries resulting not fault This relevant nearly assumption impossible. is easier area, occurs from the from medical which production malpractice, away judged light standards. of ascertainable medical and can be identify, recognition that acci- embodies Second, workplace co-employee immunity highly concomitant of dents are less a result of unreasonable conduct than a technological age. an inevitable accidents which are Unlike the occupational working is neither medical malpractice with complex consequence equipment, inevitable nor a risk that is inherent in the production process. is based in premise worker’s Third, part *7 risk an is in than to shoulder the a better a employer position co-employee higher insurance But income and liability industrial accident. the professional average coverage set from the them co-employee. company physicians apart the mutual a does not in Fourth, compromise physician company participate rights which is essence the scheme. Because the the worker’s compensation is to be doctor is removed from the he she area, unlikely extremely production injured job. sacrificing a common on the the doctor is not Thus, realistically, right exchange law to sue in for co-employee immunity. with an economic the worker’s law Fifth, cоmpensation provides employers job training, to deter future careful incentive accidents by supervision, organization significant lacks control of the But because workplace. company over the acts and exercise of physician, professional by extending little to the carries deterrent effect immunity co-employee against removes almost the Most co-employee immunity company. importantly, among negligence alone all deterrence to who, by company physician, would to actions. malpractice be invulnerable doctors, leaving negligence suits satisfies com- Thus, open company physicians frustrating the without basic of worker’s compensation pensatory purposes rights. leaves of a The dual mutual compromise capacity approach principle injuries which the liable under worker’s employee compensation employer injuries which out of a risk is in the arise by industry exposed employment — job. is in the of the “It is or hazard to which the exposed performance employee legislature covered the worker’s which the intended these risks only (Abrahamson, 311 N.W.2d act.” Jenkins Sabourin, supra, dissenting). P.2d J., 1170-71] [661 of Camden only employees treatment of Respondent’s general public County’s not members of the facility at the way separate at a in no detracts from private office as a distinctive status doctor. ... It is not of medicine which creates a public practicе dual capacity attending physician; with its duties very practice medicine, special charges obligations which a doctor responsibilities, with all of the which arise in the One’s need for doctor-patient protection relationship. (normally
'
configuration
is not affected
malpractice
employment
[Wright,
or the location of treatment.
I believe that in enacting provision the coemployee immunity laws, of workers’ compensation Legislature not did contem- plate Breme, physician, such as employee? Dr. was a fellow patients he medically treating. whom was This result —ex- cluding treating the licensed physician from immu- coemployee nity not broaden the unduly сapacity dual doctrine or —does legislative disserve the purpose immunity. furnishing such Medical is not an inherent or normal risk of and employment business of such an entity County. N.J.S.A. 34:15-8 was intended to injuries cover accidental aris- ing out of and in the of employment course kinds of —the injuries that involve employment commonly risks that are *8 most frequently associated with an In employer’s enterprise. light of unique profession stature of the medical professional obligations that devolve physicians, licensed which may employ- transcend duties that imposed er-, Legislature, through it is unreasonable to conclude that the its coemployee immunity provision, abrogate intended rights, narrow the obligations duties and that flow from doctor-patient relationship. I
Accordingly, Appel- would reverse the determination late Division.