233 N.W. 264 | N.D. | 1930
Lead Opinion
At the outset it must be conceded that the plaintiff's rights are governed by the workmen's compensation act. He was insured within the law. He was engaged in a hazardous employment and was injured while so engaged. The first section of the law declares that for workmen so injured sure and certain relief is provided (§ 396a1, 1925 Supplement *164 to the Compiled Laws of 1913) "to the exclusion of every other remedy, . . . except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided." We must, therefore, look to the act to determine what rights the plaintiff has under the facts disclosed in the instant case. It will be noted first that the sure and certain relief provided and which the plaintiff received was given apparently as a substitute for every other remedy and that civil causes of action, except as provided by the law, for personal injuries in such cases are abolished. The primary question in the instant case is whether or not the remedy sought by the plaintiff against the fund and which has been made available to him operates to deprive him of the further remedy he now seeks against a third person.
Since the law purports to substitute relief under it for any cause or causes of action through which a claimant might have obtained damages at common law for his personal injuries, we may well look to the scope of the possible common law remedy against the employer in determining the extent of the compensation authorized as a substitute. At common law one liable to respond in damages, as employers frequently were for personal injuries sustained by employees, is held liable in damages for the injury, including any aggravation thereof due to the mistake of the physician or surgeon selected by the injured person in the exercise of due care for the purpose of treating the injuries and thus minimizing the damages. The aggravation in such cases is not deemed to be the fault of the injured person but is regarded in law as a consequence of the original fault of the defendant. It is, therefore, not such an independent, intervening act of a third party as to break the chain of causation between the primary injury and the ultimate consequence or result. Many cases might be cited in support of this rule, but the following are sufficient to indicate its wide and general acceptance. Pyke v. Jamestown,
*165
81 N.E. 47; Suelzer v. Carpenter,
The workmen's compensation law gives to the workman his remedy against the fund regardless of fault (Fahler v. Minot,
An injury to be compensable under the act must be one arising in the course of employment. (Section 396a2.) It is conceded that the original injury in the instant case is one which arose in the course of employment and hence was a compensable injury. Where an injury is compensable, compensation is directed to be disbursed under § 396a3. The first duty under this section is (A) to immediately "furnish to such employee such medical, surgical and hospital service and supplies as the nature of the injury may require." Then (C) "If the injury *166
cause total disability" or (D) "If the injury cause temporary partial disability" or (E) "If the injury cause permanent partial disability," compensation is to be disbursed according to the appropriate schedule provided for such disabilities; and (G) "If death results from an injury within six years," compensation is payable to the personal representatives. In determining whether an injury is compensable, an essential fact to be found is that it arose in the course of the employment, but in determining the extent of the compensation the statute directs the bureau to consider the degree of physical impairment caused by the original injury. If there be no such break in the chain of causation that a given result must necessarily be referred to a subsequent, independent cause, it may be so directly connected with the original injury as that it may be said to have been caused thereby. Hence, the specific question before us may be stated as follows: Where through improper treatment of a physician or surgeon, either one whose services are recognized as having been furnished in circumstances creating a liability against the fund therefor or one employed by the injured person himself, the original injury is aggravated and the disability increased beyond that which would have resulted had proper remedial or corrective measures been applied, is the result one for which compensation is directed to be made by the bureau or is the injured person compelled to seek redress only in the courts against the negligent physician or surgeon? We have held in Watland v. Workmen's Comp. Bureau,
In construing the Washington law, which is closely analogous to the provisions of our law above referred to, the supreme court of Washington in Ross v. Erickson Constr. Co.
Authorities strictly in point upon the interpretation of our workmen's compensation law touching the question in hand are not to be found, but the trend of authority under similar laws will, we believe, be found to support the statement made by the annotator in 39 A.L.R. 1276, wherein he says:
"Both in England and this country, under the various workmen's compensation acts, the rule seems to be that an injured employee may recover compensation fUor a new injury, or an aggravation of his injury, resulting from medicinal or surgical treatment of a compensable injury, when there is no intervening independent cause to break the chain of causation between the new injury, or aggravation, and the original injury."
No reason is apparent to us why a condition that in common law actions for negligence is said to result proximately from the original injury may not also be said to result from the original injury in compensation cases, especially since the statute specifically authorizing the compensation to be paid considers the results rather than the original injury as the basis for compensation. There is no reason why one rule of causation should be applied in negligence cases at the common law and another rule in compensation cases. As was said by Rugg, Ch. J., in the case of Sponatski's Case,
It seems that the workmen's compensation law of California which fixes liability upon the employer or an insurance carrier is applied to like effect. In Salvatore v. New England Casualty Co. 2 Cal. Ind. Acci. Comm. 355, cited in 11 N.C.C.A. 760 note, it was said:
"An industry is liable for all legitimate consequences following from an accident, among which consequences affecting the extent of disability is the possibility of an error of judgment or unskillfulness on the part of any attending physician, whether called in by the employer or the employee."
In Stockwell v. Waymire, 1 Cal. Ind. Acci. Comm. 225, cited in 11 N.C.C.A. 760, 761 note, it was even held that where an injured employee who had received an injury to an eye had been treated by an incompetent physician — one not licensed to practice in the state — he was entitled to compensation for the loss of the eye through such improper treatment.
In Phillips v. Holmes Exp. Co.
In Pawlak v. Hayes,
In the English case of Brown v. Kent, [1913] W.C. Ins. Rep. 639, 641 — C.A., where one who had sustained a minor injury to his knee necessitating a slight operation contracted scarlet fever while in a hospital and as a result of the scarlet fever infection a permanent incapacity of the knee developed, the court of appeals, in reversing the decision of the county court adverse to the workman, concluded:
"The result is necessarily that the incapacity is the result of the accident to the knee, although probably aggravated by the scarlet fever. This entitles the workman to compensation for the accident, on the footing that the incapacity caused by it is continuing. . . . If the incapacity is the result of the accident, the chain of causation remains unbroken, although a fresh cause arising casually and `uninvited' by any special condition of the workman may have aggravated the original injury."
See, also, Lincoln Park Coal Brick Co. v. Industrial Commission (Drengwitz v. Lincoln Park Coal Brick Co.)
The reasoning of the case of Ruth v. Witherspoon-Englar Co.
We are of the opinion that a workman injured in the course of his employment and thereafter sustaining an aggravation of his injuries due either to the act of the physician employed by the bureau or to a physician reasonably employed by him, is entitled to compensation from the fund for the injuries sustained as so aggravated. Any other construction of the act, instead of providing the employee that sure and certain relief which the law has designed for his protection, would render him subject to the uncertainties of litigation for so much of his injuries as might be traceable to the negligence of his physician or surgeon and to the further contingency of the latter's financial responsibility. It would prevent the administrators of the workmen's compensation fund from using it to compensate fully those whose injuries are traceable to their employment and would make the employee carry `to a larger extent than formerly the risk incident to professional care which is made necessary by personal injuries sustained in the course of employment. Furthermore, such a construction would work this peculiar result; it would relieve a non-complying employer of a portion of his common law liability for the consequences of his tort. Under § 396 all of the act employers failing to comply with the law are deprived of the benefits of the act and are expressly declared to "be liable to their employees for damages suffered by reason of injuries sustained in the course of employment," etc., and in any such action they are not to be permitted to avail themselves of the common law defenses of the fellow-servant rule, assumption of risk and contributory negligence. This apparently broadens, rather than restricts, the liability. We have held that employers are liable under this section regardless of fault. Fahler v. Minot,
There is no provision in our workmen's compensation law that purports to relieve any person not an employer from the consequences of his negligent act. Hence, if the defendant be not relieved by the operation of the law, he remains liable; but he is not necessarily subject to suit at the instance of the compensated employee. Tandsetter v. Oscarson,
Section 396a20 of the 1925 Supplement to the Compiled Laws of 1913 provides:
"When an injury or death for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the North Dakota workmen's compensation fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents, may, at his or their option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act, the North Dakota workmen's compensation fund shall be subrogated to the rights of the injured employee or his dependents to recover against that person, provided, if the workmen's compensation fund shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee or his dependents less the expenses and costs of action."
Not only does the act fail to relieve a tort-feasor, not the employer, from liability, but it expressly provides measures for realizing upon that liability, both in the interest of making the fund whole on account of the award and in the interest of the employee. This subrogation provision does not expressly confine the right of subrogation to a cause *172
of action against a third person for the original injury sustained in the course of the employment, but it subrogates the fund to any cause of action against a third person for acompensable injury. As has been demonstrated above, the injury, if any, caused by the malpractice of the physician is regarded as resulting from the original injury and is compensable under the law. Yet, it may be the subject of an independent suit (Pawlak v. Hayes,
In the case of Fisher v. Milwaukee Electric R. Light Co.
In the case of Pawlak v. Hayes, supra, an action for malpractice was brought against the physician after an award had been obtained against the employer, but it was alleged in the complaint that after learning of the malpractice the employee ceased to receive payments from the employer under the award made and offered to return so much thereof as the court might adjudge. In commenting upon the provisions of the Wisconsin statute subrogating the employer against whom a claim is made for compensation to "any cause of action in tort *174 which the employee or his personal representatives may have against any other party for such injury or death," the court said that the employee might invoke the statutory remedy against his employer or the common law remedy against a third person "who by his negligence caused or contributed to his injury." (Page 505 of the state report, page 465 of the Northwestern Reporter.)
In Retelle v. Sullivan,
We are of the opinion that the language of the subrogation section of our statute, fairly construed to effect its remedial purposes, subrogates the workmen's compensation fund to any cause of action existing in favor of an injured insured employee against a physician for malpractice where he obtains an award from the fund for his injuries predicated upon the results of such alleged malpractice.
Of course, where the compensation paid is shown not to include any damages for the malpractice, a different question is presented. Viita v. Fleming,
Under the facts shown in the instant case, we are of the opinion that any cause of action the plaintiff might have had for malpractice passed to the workmen's compensation fund when the plaintiff as a claimant obtained his award. From this it follows that the trial court erred in denying the defendant's motion for judgment non obstante. Hence, the order and judgment appealed from must be reversed and the action dismissed. It is so ordered. *175
BURKE, Ch. J., and NUESSLE, and CHRISTIANSON, JJ., concur.
Dissenting Opinion
The majority opinion holds that in this case the plaintiff has no cause of action for alleged negligence of the defendant.
The juridical principle underlying such compensation laws as the one involved is a departure in many respects from principles heretofore established. As pointed out in State ex rel. Dushek v. Watland,
"It substitutes the principle of compensation for that of liability for fault."
See also Pace v. North Dakota Workmen's Comp. Bureau,
"`Injury' means only an injury arising in the course of employment — The term `injury' includes in addition to an injury by accident, any disease proximately caused by the employment." I see no special force in the provision set forth in Section 396a3 Supp. providing rates for "total disability" "temporary partial disability" and "permanent partial disability." These terms refer to the injury received and the term "injury" must be interpreted according to the definition given in § 396a2 of the Supplement.
The injury for which the plaintiff seeks compensation in this case was not received in the course of his employment. It is claimed there is such causal connection between the injury involved in this action and the injury received in the course of the employment that the bureau must take it into consideration in awarding damages, and that the bureau did so. It is true that the law contemplates the injured employee shall receive compensation for any expense he was put to in the treatment of his injury and if he thereby incur doctor bills and hospital expenses he will be reimbursed therefor or the bureau will pay them. However, this means proper treatment; the treatment naturally expected — not negligence — and the bureau is bound by the usual practice of surgeons, and must pay for it; but the surgeon is not an insurer of his acts. His work is presumed to be beneficial to the injured workman, even if he can not restore him to his pristine condition.
But in the case involved here there is a new element entirely — the alleged negligence of the surgeon. Assuming there was such negligence then the surgeon was a tort-feasor. The injured employee always had a right of action against the doctor for malpractice. It is immaterial what right of action the employee had against the employer under the common law with reference to negligence of a doctor, for this was based on the negligence of the employer. He is not negligent in the purview of this statute. Compensation is not based on negligence. It is utterly immaterial to the employer whether the surgeon employed is guilty of malpractice or gives the very best service. The employer has nothing whatever to do with the selection of a doctor. He is in no way responsible for it. There is "concert neither in project nor in action" between the employer and the surgeon selected by the employee. They are not joint tort-feasors and certainly the servant has a cause *177
of action for aggravation of injury. See Viou v. Brooks-Scanlan Lumber Co.
As between the injured employee and the employer the recourse to the fund is a complete settlement, and is a settlement which is compelled by law; but, as said in Viita v. Fleming,
"When it appears, as it clearly does here, that there is a liability on the part of the physician to the patient, it is a strain to hold that a settlement between the injured man and the wrong doer for the injury by the accident, whether made under the Compensation Act or outside of it, includes the claim that the injured man has against his physician for a separate and subsequent injury."
This was an action against the physician. The plaintiff was injured in the course of his employment, and the employer selected a competent physician to treat him. The opinion states the employer and the employee "agreed upon a settlement for the injuries received by plaintiff in the accident, and petitioned the court for its approval under the terms of the Workmen's Compensation Act. The court approved the settlement agreed upon, which contained a provision that, when all payments thereunder had been made, the `employer shall be and hereby is released from all claims on account of said injury in said act or otherwise.' The claim here is that this settlement released the employer, and also the defendant, (the doctor) from all liability for negligence in the treatment of plaintiff's injury."
The court held any duty the employer owed the employee was discharged, when it selected a competent physician, but that the employer "was not liable to the employee for the negligence of the physicians. It was not required to compensate plaintiff for damages sustained by their malpractice and the settlement did not purport to include any such element." Under our law the compensation is not paid by the employer, it is paid by the bureau; but I see no reason why, in principle, settlement by the bureau should be considered settlement for the negligence of the physician under our law, and yet the employer be held not liable under the Minnesota law. The comment that "the settlement did not purport to include any such element" does not vary the principle. The employee is the only one who can waive his right against the physician. In Minnesota his settlement with the employer *178 was no waiver; neither is his settlement with the employer through the bureau in the instant case. Because he told the bureau the doctors removed the astragalus, and the bureau paid for medical service is no waiver by the employee. There must be something more definite than this to bind the unfortunate worker to a release of his rights. Why, in personal injury cases, even a settlement and compromise of personal injuries made deliberately is voidable while the injured person is "under disability from the effect of the injury so received," (§§ 5941a1 and 5941a2 Supp.) so well do we safeguard the interests of the injured.
In my view the subsequent case of Pederson v. Eppard, ___ Minn. ___,
In Hoehn v. Schenck,
But here is a separate and independent injury, not received in the course of the employment, but received after the employment. The holding of the majority would take away from the injured employee his right of action in such case. True, the injured employee in filing his application, showed that the astralagus had been removed and it is claimed that he thus submitted to the bureau the alleged negligence of the doctor, and the bureau compensated him therefor. Of course the injured employee stated to the bureau the full extent of the injury from which he was suffering. He would be unfair to the bureau if he did not. It is not for him to determine how far the bureau may go in compensating him; but it is his duty to give the bureau a fair statement of the condition in which he is at the time he makes his statement. The burden does not rest upon the injured employee to determine at his peril how much he must tell the bureau. The burden rests on the bureau to investigate the case, hold hearings, secure the testimony and protect the workmen's rights. The bureau determines the extent of its own jurisdiction in distributing the funds of the bureau. It knows it can allow only for injuries received in the course of employment, but it is for the bureau to determine this factor. The testimony in this case shows that whatever compensation the injured employee received was made "under the limitation of the Compensation Act." This is the statement of the only member of the bureau who testified. He did say the bureau "allowed for 50% of permanent partial liability at the time of the final supplemental award based on the condition existing then." But the bureau "did not take into consideration pain or suffering or anything of that kind." When the bureau says it will allow for the negligence of the doctor it is doing an injury both to the fund and to the injured employee. It is distributing a fund for matters outside of its province, and it is taking from *181 the employee his right of action against the doctor on the theory that he told the bureau about the removal of the astralagus and the bureau allowed therefor. This gives to the bureau, — a non-judicial body — the right of determining the extent of the negligence of the doctor, and allowing what it sees fit, instead of having the matter submitted to a jury.
It is claimed the bureau is subrogated to the rights of the injured employee against the physician. Under the provisions of § 396a20 Supp. "when an injury . . . for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the North Dakota Workmen's Compensation Fund a legal liability to pay damages in respect thereto, the injured employee, . . . may, at his . . . option, either claim compensation under this act or obtain damages from or proceed against such other person to recover damages; and if compensation is claimed and awarded under this act the North Dakota Workmen's Compensation Fund shall be subrogated to the rights of the injured employee . . . to recover against that person. . . ." This brings us back to the character of the injury for which compensation is payable. If the negligence of the physician be compensable the injury either must have been received in the course of the employment, or such negligence must be a factor considered such a natural and probable consequence flowing from the injury received in the course of employment as to be included therein, as the only injuries compensable are injuries received in the course of employment. The bureau is not subrogated to any cause of action for which it cannot be compelled to pay damages. Appellants cite the case of Tandsetter v. Oscarson,
I believe that in this particular case there should be a reversal, but the reversal comes from the failure to instruct the jury on a matter pertinent to the issue when written request was made therefor and the request contained a correct statement of the law applicable to the case — there being no instruction given as fully in equivalent language. The defendant asked for an instruction to the effect that he was not an insurer of his treatment and that the doctrine of res ipsa loquitur did not apply. I believe the court should have instructed the jury as requested; but that is a matter peculiar to this suit.
However, this does not affect the general principle involved. If the law set forth in the majority opinion be correct then it was immaterial what errors, if any, the trial court committed in the instructions. According to this decision the plaintiff has no cause of action whatever on this claim. *183