Thе issue before this court is whether the remedy under the Ohio Workers’ Compensation Law (R. C. Chapter 4123) is exclusive as to an employer’s liability. Appellant does not contend that she has an action against appellee hospital for the original compensable injury, but does assert that her action against the appellee hospital for malpractice is not prohibited by R. C. 4123.74. In her first proposition of law, appellant argues that where, as in the instant cause, the employer occupiеs a second or dual capacity that confers obligations unrelated to and independent of those upon it as an employer, an employee injured as
The Court of Appeals rejected this argument premised upon dual-capacity, that appellee hospital’s malpractice was in its capacity as her treating physician, not in its capacity as appellant’s employer. The Court of Appeals based its judgment on its reading of Section 35, Article II of the Ohio Constitution, and R. C. 4123.74
We are not persuaded that the purpose of either R. C. 4123.74 or Section 35, Article II of the Ohio Constitution, is to prohibit appellant’s action against appellee hospital fоr its negligent treatment. The genesis of workers’ compensation in the United States and Ohio was the inability of the common-law remedies to cope with modern industrialism and its inherent injuries to workers. See State, ex rel. Munding, v. Indus. Comm. (1915),
“Workmen’s compensation legislation rests upon the idea of status, * * * that is, upon the conception that an injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operation he contributes his work as the owner contributes his capital —the one for the sake of the wages and the other for the sake of the profits. The act is based not upon any act or omission of the employer, but upon the existence of thе relationship which the employee bears to the employment because of and in the course of which he has been injured.”
The essentiality of this status or relationship is connoted in Ohio by the usage of the very terms “employer” and “employee” in bоth Section 35, Article II of the Ohio Constitution, and R. C. 4123.74. See Conrad v. Youghiogheny & Ohio Coal Co. (1923),
In juxtaposition, where the employer-employee relationship does not exist, workers’ compensation has not been found to affect the right of a workman to sue а third-party tortfeasor for injuries received in the course of his employment through negligence. Trumbull Cliffs Furnace Co. v. Shachovsky (1924),
The dual-capacity doctrine advanced by appellant has been utilized by the California Supreme Court in Duprey v. Shane (1952),
“ ‘It is true that the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic. But where, as here, it is perfectly apparent that the person involved — Dr. Shane — bore towards his employee two relationships — that of employer and that of-
It has been stated that the decisive test of dual-capacity is not with how separate the employer’s second function is from the first, but whether the second function generates obligations unrelated to those flowing from the first, that of an employer. 2A Larson, supra, at 14-117. In Duprey, supra, the court stated, at pages 792-793:
“ * * [B]ut on principle and logic it would seem that it should mаke no difference to the liability of a doctor for malpractice whether the attending doctor is the employer or an insurance doctor. * * * There seems to be no logical reason why an employer-doctor, when he undertakes to trеat an industrial injury, should not be responsible in a civil action for his negligent act in treating that injury. * * * In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but did so as an attending doctor, and his relationship to [ ] [plaintiff] was that of dоctor and patient.’ ”
Although not expressly referring to the dual-capacity doctrine, it is apparent that the Supreme Court of the United States, in Reed v. The Yaka (1963),
“* * * [0]nly blind adherence to the superficial meaning of a statute could prompt us to ignore the fact that Pan-Atlantic was not only the employer of longshoremen, but was also a bareboat charterer and operator of a ship, and, as such was charged with the traditional, absolute and nоndelegable obligation of seaworthiness which it should not be permitted to avoid. * * * We think it would produce a harsh and incongruous result, one out of keeping with the dominant intent of Congress to help longshoremen, to distinguish between liability to longshoremen injured under prеcisely the same circumstances because some draw their pay directly from shipowners and others from a stevedoring company doing the ship’s service. Petitioner’s need for protection from unseaworthiness was neither more nor less than that of a longshoreman worldng for a stevedoring company.”
We find the logic expressed in Duprey, supra, and Reed, supra, to be compelling and applicable herein. Appellee’s argument is that Ohio’s workers’ compensation requires us to ignore the fact that appellee hospital was not only the еmployer of appellant, but also the treating hospital and, as such, charged with the obligations that arise in a hospital-patient relationship. The anomalous result urged by appellee is that the workers’ compensation laws of Ohio require аppellee hospital’s liability to be distinguished upon whether the malpractice that aggravates a compensable injury was bestowed upon its hospital employee or any other hospital’s employee or, for that mat
Appellee asserts that for this court to find appellee hospital subject to a malpractice action in its second capacity would necessitаte reversal of our decision in Proctor v. Ford Motor Co. (1973),
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.
Judgment reversed and cause remanded.
Notes
Section 35, Article II of the Ohio Constitution, provides, inter alia, as follows:
“For the purpose of providing compensation to workmen and their dependеnts, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the stаte, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease * *
R. C. 4123.74 reads, in pertinent part, as follows:
“Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily, condition * *
The following are merely a few of our prior decisions which addressed these issues: Coviello v. Indus. Comm. (1935),
The “exclusiveness of liability” section of the Longshoremen’s аnd Harbor Workers’ Compensation Act, 44 Stat. 1426 (1927), Section 905, Title 33, U. S. Code (1958), construed in Reed, supra, provided as follows?
“Sec. 5. The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal reprеsentative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure pаyment of compensation as required by this Act, an injured employee, or his legal repre