39 S.W.2d 269 | Tenn. | 1931
This is a suit for damages for injuries on account of alleged malpractice of a physician. The defendant pleaded a settlement for said injuries, under the compensation statute, by the employer in whose service plaintiff was engaged at the time the injuries were received. This plea was held good, the suit dismissed, and the plaintiff appealed.
The facts are not in dispute. On November 29, 1929, while in the employ of one Lanning as a carpenter, plaintiff met with an accident and the defendant herein, a physician, was engaged by Lanning to treat plaintiff's injuries, and did so. On April 1, 1930, the plaintiff sued his employer and the insurer of the latter under the compensation statute, and this suit was settled by the payment to plaintiff of $1100, on July 31, 1930, in full discharge of the employer and his insurer. The settlement was approved by the court, according to the provisions of the statute. Lanning had previously paid $300 to the plaintiff on account of compensation and $101.25 for plaintiff's hospital and doctor's bill.
The plaintiff's contention is that the present suit is a distinct cause of action to recover damages for the aggravation of the original injury caused by unskillful treatment and negligence of the defendant; and the settlement between plaintiff and his employer under the compensation statute did not operate as a settlement or release of plaintiff's claim against the physician who was not a party to that suit.
Plaintiff further maintains that the aforesaid settlement could not have included his claim for damages against the defendant, relying on Quinn v. Railroad, *535
A consideration of the plaintiff's insistence necessitates an examination of his petition in the compensation case and his declaration in this case.
The petition in the former case averred that by reason of an accident arising out of and in the course of his employment the petitioner lost the index finger of his right hand and the first joint of the little finger of the same hand, receiving an injury which necessitated the amputation of the entire index finger and a portion of the little finger. It was further averred in that petition, by reason of complications arising, that plaintiff's blood became poisoned, that his arm had swollen and that he had suffered great pain and discomfort up to the time of the filing of the petition. It was alleged that because of the blood poison the remaining fingers of his right hand and his right arm and shoulder had become stiff and that his arm and hand had become a complete loss; that he was unable to work and that this condition was permanent, charging the entire loss of the use of his right hand and right arm he prayed for appropriate compensation under the Act.
The declaration in this case sets out the same injuries, with more elaboration, including the pain and suffering, and adding a charge of injury to the nervous system of the plaintiff. The declaration herein concedes the loss of the fingers, or portions of the fingers, to the accident, but ascribes the loss of the arm, the pain and other injuries to the malpractice and neglect of defendant, which is detailed. *536
The malpractice sued for herein is alleged to have occurred between November 29, 1929, the date of the accident, and December 16, 1929. It will be remembered that the petition in the compensation case was filed April 1, 1930, and settlement made in that case on July 31, 1930.
Undoubtedly the plaintiff, as petitioner in the compensation case, recovered for more than the loss of the first finger and a part of the little finger. Under section 28 of chapter 123 of the Acts of 1919, and chapter 40, Acts 1927, the maximum compensation which could have been allowed in that case for the loss of the first finger and the partial loss of the little finger was $680. As above stated, plaintiff was paid $1400 on account of compensation for his injuries in the former case.
It seems to us that the plaintiff is cut off from any recovery in this suit by section 14 of the Workmen's Compensation Act, which is as follows:
"Be it further enacted, That whenever an injury for which compensation is payable under this Act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employe may at his option either claim compensation or proceed at law against such other person to recover damages, or proceed against both the employer and such other person, but he shall not be entitled to collect from both; and if compensation is awarded under this Act the employer having paid the compensation or having become liable therefor, may collect, in his own name or in the name of the injured employe in a suit brought for the purpose, from the other person in whom legal liability for damages *537 exists, the indemnity paid or payable to the injured employe."
From what has been stated it appears that the injuries, for which the greater part of the compensation was paid, were injuries due to the negligence of the physician, according to the averments of the declaration before us. That is, the injuries for which compensation was in greater part paid were injuries sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto. Compensation for these injuries having been paid by the employer, the employee cannot sue the third party on account of the same.McCreary v. Nashville, C. St. L. Ry.,
Insofar as the compensation paid covered damages which this employee might have collected from a third person, his employer became subrogated to the employee's rights against such third person. American Mutual Liability Co. v. Otis Elevator Co.,
The acceptance of medical services tendered by an employer to an injured employee is compulsory upon the latter by section 25 of the Workmen's Compensation Act. City of Nashville v.Latham,
It must be true, therefore, that an injury resulting from negligent treatment by the employer's physician of a compensable injury of the employee is an injury for which compensation is payable by the employer and the case made by the declaration falls under section 14 above quoted.
In Quinn v. Railroad,
Nevertheless, if one is injured by the negligence of another and these injuries are aggravated by the negligence of a physician, the negligence of the wrongdoer in causing the original injury is regarded as the proximate cause of the damage flowing from the subsequent negligent treatment by the physician. This is true even if the physician is selected by the injured person, provided due care is exercised in the choice of such physician. Tex. P.R. Co. v. Hill,
So, even if the previous case had been a maintainable suit at law, instead of under the compensation statute, the employer could not have been heard to say that he was not responsible for the results of his physician's negligent treatment of the original injury. A cause of action could not have been based upon negligent treatment, *539 but the employer would have been liable for the results of the medical treatment, whether it was negligent or otherwise.
Authorities relied on by the plaintiff herein may be readily distinguished with the exception of Viita v. Fleming,
The judgment below must be affirmed. *540