FLETCHER v HARAFAJEE
Docket No. 43210
Court of Appeals of Michigan
Submitted January 5, 1980. Decided October 6, 1980.
Leave to appeal applied for.
100 Mich App 440
- The courts have concurrent jurisdiction with the Bureau of Workmen‘s Compensation to determine whether an injured worker and the person causing the injury are co-employees.
- The employment relationship in this case was only incidentally involved, therefore the plaintiff and the defendants are not co-employees for the purposes of the act, and the malpractice action is not precluded by the act. The summary judgment motion was properly denied.
Affirmed.
BEASLEY, P.J., dissented. He would hold that the plaintiff and the defendants are co-employees and that the malpractice action is, therefore, precluded.
REFERENCES FOR POINTS IN HEADNOTES
[1, 3, 4] 81 Am Jur 2d, Workmen‘s Compensation § 67. Right to maintain action against fellow employee for injury or death covered by workman‘s compensation. 21 ALR3d 845.
[2] 82 Am Jur 2d, Workmen‘s Compensation §§ 471, 472, 475.
Thе exclusive remedy of an employee injured in the course of his employment by the actions of a fellow employee is that provided by the Worker‘s Disability Compensation Act (
2. WORKERS’ COMPENSATION — COURTS — JURISDICTION — FELLOW EMPLOYEES.
The courts have concurrent jurisdiction with the Bureau of Workmen‘s Compensation to determine whether an injured worker and the person causing the injury are co-employees.
3. WORKERS’ COMPENSATION — FELLOW EMPLOYEES — INCIDENTAL EMPLOYMENT RELATIONSHIP.
A city police officer injured in the course of employment is not a co-employee, within the scope of the Worker‘s Disability Compensation Act, of a doctor employed by the city in a public emergency medical facility where the officer was treated; the employment relationship is only incidentally involved, and the injured officer is not precluded from bringing an aсtion against the doctor for medical malpractice.
DISSENT BY BEASLEY, P.J.
4. WORKERS’ COMPENSATION — FELLOW EMPLOYEES — EXCLUSIVE REMEDY — STATUTES.
A city police officer injured in the course of employment and a doctor employed by the city in a public emеrgency medical facility are co-employees within the scope of the Worker‘s Disability Compensation Act, and the officer is therefore precluded from bringing an action against the doctor for medical malpractice in the treatment of the officer‘s injury (
Philo, Atkinson, Darling, Steinberg, Harper & Edwards, for plaintiffs.
Wilson, Portnoy, Basso & Leader, P.C. (by Robert P. Roth), for defendants Johannsson and Zyber.
D. E. HOLBROOK, JR., J. Plaintiff, Madeline Fletchеr, a female police officer, was shot in the abdomen during an altercation with fellow officers while on duty. She was immediately taken to Hurley Medical Center emergency room where her wound was sewn up. A sponge was inadvertently left inside requiring her to undergo further surgery approximately six days later. The medical center is owned by the City of Flint, and the treating medical personnel are employees of the city.
A malpractice suit was filed against the medical center and the individual professionals. The medical center was dismissed per stipulatiоn. Defendants claim that plaintiff‘s and their status as fellow employees of the City of Flint renders them immune from suit under
The Worker‘s Disability Compensation Act provides an exclusive remedy for fellow employees when injuries arise out of the course of employment. Herndon v UAW Local No 3, 56 Mich App 435; 224 NW2d 334 (1974), and Wilson v Al-Huribi, 55 Mich App 95; 222 NW2d 49 (1974). Defendants contend that the issue of whether the plaintiff should be permitted access to the court to sue in a medical malpractice action is a matter properly decided by the Bureau of Workmen‘s Compensa-
“The statutory grant of exclusive jurisdiction to the workmеn‘s compensation commission does not deprive a court of the jurisdiction to determine rights arising out of an entirely different relationship and in an entirely different type of procеeding in which the employer and employee relationship is only incidentally involved.”
The courts of Michigan have long maintained concurrent jurisdiction in determining whether co-employеe status exists. In Nichol v Billot, 406 Mich 284, 306; 279 NW2d 761 (1979), the defendant asserted as an affirmative defense that he was a co-employee. The Court held that the question of defendant‘s status as an employee is an issue оf law for the court providing that the evidence is reasonably susceptible of only a single inference, but that a jury determination should be made where facts are disputed or where сonflicting inferences may reasonably be drawn from the known facts.
In the instant case the employment relationship is only incidentally involved. We do not find case law or statutory mandate which would require a plaintiff city employee to first appear before the Bureau of Workmen‘s Compensation just because the defendant is also a city employee. Sеe Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971), in which a hospital employee, while on her lunch hour, cut her mouth on a foreign particle contained in a piece of pie which she purchased in the hospital‘s cаfeteria. It
The lower court found that plaintiff and defendants were not co-employees. Defendant contends this was error, citing as authority Jones v Bouza, 381 Mich 299, 302; 160 NW2d 881 (1968), in which the plaintiff, an employee of Ford Motor Company, was treated for an on-the-job injury by a company staff physician. Summary judgment was granted because they were co-employees. When a work-related injury is aggravated by treatment, the business structure is an important consideration in determining whether a plaintiff‘s remedies are limited. In Jones, supra, the full-time staff physician was hired to discharge the employer‘s obligation of supplying medical care for those employees injured on the job. The instant case is distinguishable in that the physician was not employed for the sole purpose of treating city employees. The medical services were available to the genеral public.
This factual situation presents a case of first impression in Michigan. Other jurisdictions with similar statutory language have formulated criteria in determining whether attendant medical persоnnel are co-employees within the scope and purpose of the statute. In New York the test includes:
- Was there a professional medical service made available to employees;
- Was the service limited to employees only and not the general public; and
- Did the plaintiff receive these services only as a consequence of his еmployment.
The “third party” provision of
The co-employee doctrine is inapplicable. Plaintiff was not pursuing or furthering the interests of her employer. Her status was that of a medical patient. The remedial surgery and increased cоnvalescence resulted from a physician-patient relationship. The theory of the cause of action has
Affirmed.
R. E. ROBINSON, J., concurred.
BEASLEY, P.J. (dissenting). I respectfully dissent. I believe Jones v Bouza1 is applicable and requires reversal.
I would vote to reverse.
* Circuit judge, sitting on the Court of Appeals by assignment.