*1 and Ruth his Wife, Lewis Jones, Jones etc., et al. Foundation, Laird Inc.
(No. 13196) Submitted January 1973. Decided March 1973. Concurring Opinion April 1973.
Leon T. Copeland, Stephen Meyer, P. for appellants. Johnson, Anderson, Steptoe & Wilson for appellees. Judge: Neely,
This case appeal plaintiffs is an from a final below order of summary judgment by the Circuit Court of Fayette County entered in pleadings June 1971. The show Jones, in April plaintiff, Lewis injured for working while Coal Co. Cannelton and was hospitalized under the care of physician, defendant Sanchez, Segundo agent who was neither an nor employee plaintiff’s employer, the Cannelton Coal Co. The plaintiff alleges that after he was released from care Dr. Sanchez he September returned to work in 1969, but original injury had not been treated properly, causing and pain, discomfort and that corrective measures were advised other physicians. Corrective measures, requiring hospitalization and graft bone surgery, performed were plaintiff in 1970. The received Workmen’s benefits, Compensation including weekly payment and for medical and hospital expenses, for treatment both original injury and the subsequent hospitalization graft and bone corrective surgery.
The facts of this case are almost identical to those presented in Scott, case landmark of Makarenko v. 430, 55 (1949) S.E.2d plaintiff, which Makarenko, Alexander sought to recover from the defendants, Dr. W. W. Scott and Williamson Memorial Hospital, for personal injuries he claimed which were the result of Dr. Scott’s negligent and unskillful treatment original, employment connected injury. In Makarenko, case, as in this the doctor was not a fellow employee of plaintiff. Also, case, as in this plaintiff was entitled Compensation benefits both the original employment related injury any later aggravations of the original injury.
In Makarenko Court held that this recovery a man but one principle that is entitled to any separate physician bars a who wrong against action treats an covered under the negligently as both the law. The Court reasoned that later are aggravation compensable, and the the claimant Fund for receives full recovery injuries. both This action in bars an tort doctor or hospital for damages.
In this Court 1: syllabus, point said “When person personal sustains a injury, caused by the negligence wrongdoer, of a or the injury received is such as entitles the injured person to an of compensation award under the workmen’s compensation State, person exercises care in reasonable the selection of a competent physician hospital him treat for such injury, which is aggravated by the or unskillful *3 negligent treatment general them, rendered by not, he can as a rule, maintain action against an such physician or hospital for damages which result from the aggravation injury. of the In each case the regards aggravation law the as of the part damages immediate direct and which naturally flow the original injury.” Based upon the of stare principle decisis and in accord Makarenko, the of Fayette County Circuit Court granted summary judgment to the in defendants case. We granted a writ of appeal and error for the purpose of reviewing propositions the of law enunciated in as review justified seemed under the persuasive dissenting opinions of two in judges the Makarenko case.
This Court is of opinion the the holding of Makarenko was the of this State before its articulation in further, the in holding Makarenko inis dissonance with decisions in related areas of law written Therefore, after 1949. Makarenko aberration in the State, of this common-law and we entirety in its expressly holding overrule its
hereby oblivion. lingering memory commend even its Makarenko in the logic The fundamental error in made against claim employee’s decision of the conceive action a cause of the Fund as Compensation Workmen’s arising delicto, a cause of action ex rather than as arising under ex to recover right employee of an contractu. of the status Compensation upon Workmen’s is based employer,’ the the and not of employee Parramore, 418, 44 Ct. U.S. S. Cudahy Packing Co. v. 366, (1923). Compensation 68 L. Ed. Workmen’s nature, provisions contractual as the of contract integral part Act become an Compensation employee. of employment between Commissioner, Compensation Lancaster v. 125 W.Va. (1942). regulating rules S.E.2d 601 Common-law apply ex delicto do not damages actions assessment Compensation, under as claims on the severity depends entirely award at time of the employee’s wage and the accident, damage and not upon the amount done to dependents. disregarded
In Makarenko apparently the Court long established that Workmen’s principle this State a collateral source regarded is to be benefits, and that is therefore not to be in an action mitigation considered Court’s third tort-feasor. believe that party We in Makarenko tort-feasors and joint distinction between logical sufficient successive tort-feasors without *4 Co., Torpedo Marietta foundation. In the case of Merrill v. (1917), long decided before 92 S.E. expressly placed the Court familiar “Collateral Compensation awards within the 99(1-3). Rule.” 25 Therefore Damages Source C.J.S. § no more a proper is than health or mitigation damages consideration accident insurance.
In Merrill the page Court said at 679: “* * * If the employe the course of his employment he is entitled to fund, out of occasioned the his whether was negligence master the
not; if occasioned third person right his to compensation out of fund affected, not thereby right nor is his of action person such third causing impaired. provision The of the act is somewhat in the nature of life and insurance. That accident a person may insurance, be protected by accident and at right the same time have of action against person negligence produced whose accident resulting in his injury, well settled.” This Court does not that Merrill logically believe can be distinguished facts, from Makarenko on its as the distinction joint between tort-feasors successive tort-feasors is illusive.
The Makarenko opinion to attempted distinguish Kirkhart, Tawney 550, 44 (1947), 130 W.Va. S.E.2d from the facts in the Makarenko case. In Tawney, plaintiff’s decedent employee subscriber Plaintiff an action Fund. instituted against a railroad company plaintiff’s decedent’s fellow employee for wrongful death caused jointly by both Tawney defendants. involved the of a fellow liability employee, and this rejected Court the contention of the defendant fellow that because both he and the deceased were employees of same employer, who was Fund, a subscriber protected defendant was by the umbrella of the Fund own liability negligence. turn,
The Tawney case in overruled expressly Hinkelman Wheeling Corporation, Steel 114 W.Va. (1933), 171 S.E. 538 which had held a company doctor aggravation injuries was not liable for fellow employee when both the doctor and the employee employed by were same who was subscriber to the Fund. logic Tawney which *5 have also should Hinkelman overruling of
compelled Makarenko. in result opposite dictated Hinkelman, overruled expressly Tawney case When the an empoyee that in this State it established Fund can Compensation by covered the Workmen’s of aggravation negligent for from doctor recover However, employee. a fellow if doctor is injuries, even Makarenko, Virginia the West in 1949,after the decision Act Compensation amended the Workmen’s Legislature officers, managers, agents, liability to exempt subscribing employers. of representatives, employees Virginia, 6a, Code West 23, 2, Article Section Chapter of 1931, amended. as Tawney changed application amendment
This not doing, did but employees, so regard fellow Hinkelman, merely but logic of the general reinforce Hinkelman statute. result specific recognized the total immunity last extension of Since this unambiguous. clear statutory grant immunity erroneously of those added exception persons With the situation through narrow factual decisional law not persons those general rule from suit the Workmen’s granted expressly immunity to common-law subject Law are suit persons Therefore to all within the class damages. not 23-2-6a,Tawney Code the correct protected by still reflects law. opinion attempted distinguish
The Makarenko also tort-feasors, joint although from successive tort-feasors phrase the Court did use the “successive not tort-feasors”. Code Chapter Article Section 12 West Virginia, 1931, a release of one specifically provides that joint tort-feasor shall not bar an action against the other. says: Code 55-7-12 to, with,
“A release or an accord and satisfaction one or joint trespassers, tort-feasors, more or shall inure to the benefit of such another tort-feasor, or trespasser, and shall no bar be joint to an or suit other action such same cause trespasser, of tort-feasor, release or accord action which the satisfaction relates.” *6 expressed There no logical why policy is reason the not also joint Code 55-7-12 should regarding tort-feasors apply against recovery successive tort-feasors. Whether one tort-feasor barred release or accord depend satisfaction with to another respect should upon linguistic wrong characterization of a as “successive,” “joint,” opposed as Linguistic to a tort. on type impose distinctions burden impossible the discretion of a court. Co.,
In the case of Jones Power Appalachian 145 478, 115 (1960), W.Va. S.E.2d after 129 decided case, Makarenko again applied this Court the collateral source rule benefits derived under Workmen’s Compensation in joint tort In Jones situation. plaintiff’s decedent killed when boom of a crane was touched an overhead electric uninsulated line power defendant At the time of accident company. plaintiff’s decedent, operator, the crane employed by chain, on a pulling rope, wire or which was connected to the boom of the crane. Plaintiff sued and recovered from the power although defendant company plaintiff’s decedent under Compensation. was covered This Court held that benefits could not be considered jury mitigation plaintiff’s against an action the power company. At 488 page the Court said: “The cases cited in support the footnotes language heretofore quoted by this Court in Co., Merrill Torpedo case v. Marietta 79 [Merrill (1917) S.E. the claim of ] an employee or the dependent of deceased employee benefits employer the claim of either against a third party tort-feasor are different in kind. The first solely statutory benefits the second
results from common liability. Under the provisions of Chapter Virginia 23 of the West Code, Compensation, entitled is a relationship between the who subscriber to the fund and his one of implied contract. employer agrees employees may compensated be for injuries sustained in of and as a the course result of their employment regard without except certain not here instances material. language Thus the in the Brewer case * * that: It is also well settled that “Partial satisfaction of the injured person by joint one tanto, satisfaction, tort-feasor is a pro to all.” * * *’ ais correct statement of the law but it is inapplicable where a plaintiff has received compensation from a collateral source such as workmen’s compensation benefits, accident and insurance, health Trumbull otherwise. Cliffs Furnace Co. Shachovsky (Ohio-1924), 146 N.E. citing (N.J.), 306 A. Newark Co. Paving v. Klotz *7 91; Ott, Mercer 952; S.E. Co., Merrill Marietta Torpedo 79 W.Va. 1917F, S.E. L.R.A. 1043; and Shearman & Redfield, Negligence (6th Ed.), sec. 765.” This Court today overruling believes that our action in Makarenko principle v. Scott in no a way articulates new Rather Makarenko a law. we believe that was departure from the established common-law this State. We a in overrule Makarenko because it was mutation one law, limited area of jeopardized tort which has legal reasoning consistent in other area of every tort law since 1949. procedure
While the forms of this Court require Fayette County, recognize reverse the Circuit Court of we Judge correctly applied the learned Circuit Court, that, established this principles law as substance, upon in of reversal ourselves onus upon summary the Circuit Court. Accordingly reversed, and the in favor of judgment defendants of Fayette County to the Circuit Court case is remanded in merits trial on the proceed directions to with opinion. conformity with and remanded
Reversed directions. with Sprouse, Judge, concurring: embodied I concur the decision
Respectfully, principal opinion this case. are of this State The laws workmen’s opinion Legislature. majority creature of our The purely Scott, committed fundamental supra, in Makarenko v. error in of common grafting principle onto those laws a enacting Legislature’s purpose alien to the legislation. workmen’s compensation case, In in Makarenko reaching its final conclusion the Court large negligence, reviewed area the law but reduced reasoning to its basic there was plaintiff right legal denied the doctor on negligent sue two here, principles. plaintiff, statutory was recipient under the workmen’s laws whose aggravated treatment of a was negligent doctor. Both legal principles the basic considered Makarenko, however, rooted deeply solely are the common law. principle
The first that a person negligently who personal causes injuries is liable increased due to the negligence of a physician who treats and aggravates the original injury injured person when the exercises selecting reasonable care in physician. *8 This is a almost universal rule and is certainly the rule Yoho, Mier Virginia. West 114 171 S.E. 535;Annot., 100A.L.R.2d 808.
Actions
injured party against a malpractitioner
were not barred
doctrine,
by this
rather it
only
was
when
the injured party totally released the original
tort-feasor
that a subsequent action the malpractitioner was
Mier Yoho,
supra; barred.
Damages,
2d,
Am. Jur.
808;
112-13,
163-65; Annot., 100 A.L.R.2d
pages
Sections
Annot.,
have in recent
Many
40 A.L.R.2d
courts
1075.
2d,
years
position.
even reversed this
Am.
Jur.
Healers,
Physicians, Surgeons, and Other
Section
365-68; Annot.,
assuming,
Even
developed
the law of
damages
doctor,
protect
negligent
a
but primarily to make it
simpler to
in a
prove
damages
personal
total
case.
2d, Damages,
22 Am.
162; Annot.,
Section
page
Jur.
The view that tort-feasor is for the liable subsequent damage caused or mistake lack of skill of a physician surgeon whose treatment aggravated the original has been generally based upon the reasoning (1) that the additional harm is either part original (2) injury; natural and probable consequence the tort-feasor’s original negligence; or (3) normal incidence of medical care necessitated the tort-feasor’s original negligence. speak cases “proximate cause”, terms and “foreseeable intervening 2d, Damages, cause”. Am. Sections Jur. 112-13,pages 163-65.
Once the courts developed the theory tort-feasor was liable not for the only damage caused by his negligence but additional damage caused by a treating physician, logical extension of these to bar decisions an action against a negligent doctor after release of the original tort-feasor. cause”, “Proximate “foreseeability” and similar common- law conceptional terms merged for this purpose. Conversely, negligence and the related concepts of “proximate cause” and “foreseeability”, the very essential factors in doctrine, the “release” no play role *9 all in at of compensation. law workmen’s This is major reason of why liability a release common-law cannot be of equated acceptance payment under workmen’s compensation.
The very purpose of compensation the workmen’s laws is to release both employer employee and from the often damages. burdensome of and liability common-law rules policy Its is to from and protect expensive employer unpredictable litigation to provide compensation for injuries to employees without burdensome requirements of proving negligence. common-law sharp departure of the workmen’s laws common-law principles apparent throughout its various provisions. 23, Code,
Chapter 6, 1931, amended, Article Section as provides expressly employer good standing: “ * * * respond shall be liable to in damages at common death law or statute for the or * * * any employee occurring, however .” The award to the not based on negligence of the or employer wrong. on other It is any simply compensation for being injured his promoting permits industrial causes It the employee the State. to payments through receive for administrative procedures type but restricts severely he could for disfigurement, He nothing receive. receives mental pain, suffering, recovery and his future loss earning restricted, power is is for severely as cases, matter right some future medical expenses. All of rights worker’s obligations are contained the workmen’s laws.
Chapter 6a Article Section of the Code of West Virginia, 1931, amended, as employer’s extends 23-2-6, Code, 1931, amended, defined in immunity officers, managers, agents, representatives or employees to none other. If the had Legislature intended the receipt compensation payments worker’s negligent physicians, immunity as a release serve act, provided. so have to the would
strangers action any It true under *10 recovery and satisfaction full only can be one there damages. the total tort-feasor is satisfaction any Company Coal Pocahontas Consolidated New River & 573; Annot., A.L.R. 553. 112 46, S.E. Eary, 115 W.Va. 174 Virginia The West principle. This a is however, permits design, accident or Legislature by either recovery double recovery in a area. Such double limited employment in covered is a allowed worker party tort-feasor. where the is caused a third injury by and is allowed compensation The injured receives party Torpedo Marietta Merrill v. to the third party. sue 629, 89 952. Co., Ott, S.E. Mercer 78 W.Va. supra; a workmen’s permitting This rule of law tort- party a third bring against to an action recipient compensated he was feasor on the same for which “When by far the rule in the United States. majority is tortious compensable injury person’s the of a third is result a right all of action conduct, preserve statutes but two tort-feasor, compensation system the the against since 2 immunity strangers.” was not extend designed to Compensation 71:00, Section Larson, Law, Workmen’s page 165.
“ * * * every dealing Almost the jurisdiction question recognized has form that a suit will lie some a physician aggravated compensable who has Compen- by malpractice.” Larson, Workmen’s 72:61, 226.4, page citing Section numerous Law, sation cases; 2d, Physicians, Surgeons, 61 Am. and Other see Jur. Healers, (West Section 364. one state page Only Virginia doctrine) under the Makarenko relieved malpractitioner from all tort liability. Larson, Compensation 72:61, 226.7. page Section Law, may desirability
There be serious about the doubt permitting even in this limited area of recovery double however, This, the law. matter within the strictly prerogative of our Legislature. majority The vast by their double statutes —not prevent recovery states perhaps free permitting physician go tort-feasor at contributes expense employer of an innocent who apportioning damages. to the fund but This election, accomplished principally requiring subro- gation or a similar device. Larson, pages Sections Law, 72-74, 174-226.138. York, for example, permits
New to recover doctor, malpractice entire from the limits damage but the compensation from solely Parchefsky injury. v. Kroll Bros., 267 N.Y. 308. Virginia 196 N.E. West apparently no only one two states which has provision subrogation election or its workmen’s Annot., laws. Again, 28 A.L.R.3d 1124-25. this is legislative question, but, Legislature until has balanced the equities, is not for this Court to compound *11 the inequity by permitting negligent physician protection of a government umbrella with the employer footing the bill. Tawney Kirkhart, cases of supra, v.
Hinkelman v. Wheeling Corporation, supra, Steel discussed extensively the principal decision relate to the question liability of co-employee. The holdings were mooted Chapter Article Section 6a exempting tort-feasor employees from suit the injured workmen’s compensation recipient. The physician involved in the case is instant For co-employee. these reasons this discussion principal decision has no on bearing case.
It is also felt that discussions concerning “collateral source” and “joint” tort-feasors, “successive” although containing some expressions correct law, are inapplicable to this case.
All the members the Court agree strongly that the majority opinion Scott, in Makarenko v. supra, was committed to an erroneous proposition of It has law. been a controversial decision, written aby great jurist
and respected Court, member of this we respectfully but disagree conclusion.
My colleague assigned to write principal decision suggests this case that Makarenko overruling “in no way articulates a principle new I am law”. certain not, we, he does nor do any intend announce innovations the doctrine of stare course, decisis. has been the law from its decision until the decision in this case. There were ancient many principles of law discussed in the majority opinion of Makarenko. Some of these cases ruling remain the case State. We would not as my states, colleague “expressly overrule its holding in its entirety”, but we would overrule Makarenko Scott, supra, to the extent is inconsistent with this concurring opinion.
Judges Berry, Caplan and Haden authorize me to state me they join in this concurring opinion. Virginia
State of West Robert Harr (No. 13077) September 19, Submitted 1972. March Decided 1973.