SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1939-97T2
DONALD HAWKSBY and
JOANNA HAWKSBY, his wife,
Plaintiffs-Appellants,
v.
JOSEPH DEPIETRO, M.D.,
Defendant-Respondent,
and
WALTER URS, M.D.,
MATTHEW GARFINKEL, M.D.,
WILLIAM H. ROSS, D.O., and
METUCHEN ORTHOPAEDIC GROUP,
Defendants.
___________________________________________________________
Argued January 19, 1999 - Decided March 9, 1999
Before Judges D'Annunzio, Cuff and Collester
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County.
E. Drew Britcher argued the cause for appellants
(Leonard & Butler, attorneys; Mr. Britcher, on
the brief).
Michelle A. Monte argued the cause for respondent
Joseph DePietro (Monte, Sachs & Borowsky, attorneys,
Thomas D. Monte, Jr., of counsel, Ms. Monte,
on the brief).
The opinion of the court was delivered by
D'ANNUNZIO, J.A.D.
The issue is whether a production employee may sue a
physician, who is a fellow employee, for the physician's alleged
failure to diagnose a malignant tumor during treatment for a
compensable injury.
Plaintiff, Donald Hawksby, was employed by the New York
Times Company on December 13, 1993. On that date, while engaged
in his duties in the New York Times pressroom, he fell off a
ladder injuring his left thigh and knee. Hawksby was treated, at
least in part, by defendant, Dr. Joseph DePietro, the Times'
medical director and a full-time employee of the New York Times.
Hawksby alleges that DePietro treated him for approximately one
year, but without improvement.
In late 1994, Hawksby was examined at Memorial Sloan-Kettering Cancer Center in New York City. The ultimate diagnosis
was a "large high grade sarcoma of his left calf." The tumor
"measures at least 20 cm and encompasses a good one-third of the
circumference of the calf." Hawksby received chemotherapy. The
record does not clearly establish whether the tumor was removed
surgically. We are unaware of the prognosis.
In January 1995, Hawksby filed a workers' compensation
petition against the New York Times. In November 1995, Hawksby
commenced this medical malpractice action against Dr. DePietro
and other medical professionals. In October 1996, the trial
court granted Dr. DePietro's motion for summary judgment on the
ground that Dr. DePietro, being a fellow employee, was immune
from a tort action under N.J.S.A. 34:15-8. The trial court
denied plaintiff's request that the matter be placed on the
inactive list pending the workers' compensation matter. The
summary judgment order was interlocutory because the medical
malpractice action continued against other medical professionals.
This court denied plaintiff's motion for leave to file an appeal
from the summary judgment.
The workers' compensation claim was disposed of on May 22,
1997 by entry of an order approving settlement. See N.J.S.A.
34:15-20. The order awarded Hawksby "10" of the left leg for
residuals of a hamstring pull." It also stated that "[t]he
spindle cell sarcoma is not causally related to the petitioner's
employment or the accident of 12/13/93."
On July 23, 1997, plaintiff moved in the medical malpractice
action, under R. 4:50-1, to set aside the summary judgment. The
court denied this motion on October 24, 1997. That order was
also interlocutory because the medical malpractice case had not
been disposed of as to all parties. However, a stipulation of
dismissal with regard to defendant, William H. Ross, M.D., the
last party in the case, was filed on November 6, 1997. Plaintiff
filed his timely notice of appeal on December 3, 1997, appealing
from the October 24, 1997 order denying the motion to vacate the
summary judgment entered on September 18, 1996.
An employee may not maintain an action for professional
negligence against a fellow-employee physician arising out of the
treatment of a compensable injury. The employee's sole remedy is
under the Workers' Compensation Act. Boyle v. Breme,
93 N.J. 569
(1983); Bergen v. Miller,
104 N.J. Super. 350 (App. Div.),
certif. denied,
53 N.J. 582 (1969). This principle is codified
in N.J.S.A. 34:15-8, which provides that "[i]f an injury . . . is
compensable under this article, a person shall not be liable to
anyone at common law or otherwise on account of such injury . . .
for any act or omission occurring while such person was in the
same employ as the person injured . . . except for intentional
wrong." This provision was added to the workers' compensation
statute in 1961. L. 1961, c. 2, § 1. Prior to the amendment,
however, an injured employee could maintain a tort action against
a fellow employee whose alleged negligence was a proximate cause
of the work-related injury. Stacy v. Greenberg,
9 N.J. 390, 397
(1952); Churchill v. Stephens,
91 N.J.L. 195 (E. & A. 1917). But
see Burns v. Vilardo,
26 N.J. Misc. 277, 280 (Sup. Ct. 1948)
(holding that an injured worker could not maintain a malpractice
action against a plant physician for aggravating the industrial
injury; the employer was responsible "in compensation for the
whole injury" including the alleged aggravation of it and that
the "remedy provided by the Compensation Act is exclusive.").
Boyle and Bergen, however, involved allegations of
professional negligence which aggravated the compensable injury
being treated. The present case is different. Plaintiff alleges
that Dr. DePietro failed to diagnose a cancerous tumor not
related to the industrial injury and otherwise not compensable.
We are persuaded, nevertheless, that if Dr. DePietro, in failing
to diagnose the cancerous tumor during his treatment of Hawksby's
compensable injury, deviated from a standard of care, any
additional harm as a consequence of that deviation constitutes a
risk incidental to Hawksby's employment and would be compensable
under the workers' compensation statute. Cf. Livingstone v.
Abraham & Straus, Inc.,
111 N.J. 89 (1988) (store employee
injured while walking in mall parking lot not owned by employer);
Thornton v. Chamberlain Mfg. Corp.,
62 N.J. 235, 242 (1973)
(injuries sustained by petitioner as a result of assault by
former co-employee, occurring nine days after petitioner
terminated his employment, were compensable because they "were
caused in every realistic sense by petitioner's exposure at
work."); Howard v. Harwood's Restaurant Co.,
25 N.J. 72 (1957)
(assault of employee by a co-employee at the employment site is a
risk associated with the employment and is compensable);
Prettyman v. State,
298 N.J. Super. 580 (App. Div. 1997) (under
"but for" test, petitioner's depression, high blood pressure and
post traumatic stress disorder as a result of hostile aggressive
interrogation by State Police detectives were compensable because
the event arose out of work-connected duties).
Unlike the case where a physician aggravates the injury
being treated, however, here the compensability of DePietro's
alleged diagnostic failure would depend on concepts of fault,
i.e., if Dr. DePietro did not deviate from a standard of care,
then neither he nor the New York Times is responsible, in tort or
under the compensation statute, for the progression of the cancer
because Hawksby would not have suffered harm from DePietro's
treatment. Fault, however, is a concept foreign to the
principles on which workers' compensation is founded.
Another potential anomaly involves the measurement of
recovery. Although the record is sparse, it is likely that
plaintiff's "injury" due to Dr. DePietro's alleged negligent
diagnosis is an enhanced risk of recurrence of the cancer as in
Evers v. Dollinger,
95 N.J. 399 (1984). See Scafidi v. Seiler,
119 N.J. 93 (1990). It may be difficult and awkward to apply
concepts of permanent injury central to the workers' compensation
scheme to injury measured by enhanced risk of recurrence. See
N.J.S.A. 34:15-12.
Because of these anomalies, plaintiff's argument that this
case is outside the bar of N.J.S.A. 34:15-8 has some appeal. We
have determined, however, to reject the argument.
The majority of the courts which have addressed this issue
have concluded, as New Jersey has, that an injured employee may
not maintain a malpractice action against a co-employee physician
for the negligent aggravation of his or her existing injury. See
Hendy v. Losse,
819 P.2d 1, 11-14 (Cal. 1991) (workers'
compensation is the exclusive remedy of an injured employee
against a negligent coemployee physician acting within the scope
of his employment); Panaro v. Electrolux Corp.,
545 A.2d 1086,
1092-94 (Conn. 1988) (Workers' Compensation Act exclusivity
section precluded injured employee from bringing malpractice
action against company nurse for negligent aggravation of work-related injury); Young v. St. Elizabeth Hosp.,
475 N.E.2d 603,
606 (Ill. App. Ct. 1985) (injured worker's malpractice action
against his coemployee, the company doctor, is barred by the
exclusive remedy provision of the Worker's Compensation Act);
Moore v. St. Francis Cabrini Hosp.,
679 So.2d 943, 945 (La. Ct.
App. 1996) (noting that, pursuant to statutory amendment
effective January 1, 1990, Louisiana no longer allows injured
workers to maintain malpractice suits against coemployee
physicians); Jones v. General Motors Corp.,
355 N.W.2d 646, 648-50 (Mich. Ct. App. 1984) (if nurse was coemployee acting within
the scope of her employment when she negligently treated
plaintiff's work-related injury, plaintiff will not be permitted
to maintain a private malpractice action against the nurse);
Garcia v. Iserson,
309 N.E.2d 420, 421-22 (N.Y. 1974) (worker
whose work-related injury was aggravated by negligence of company
physician could not maintain separate malpractice action against
physician); Proctor v. Ford Motor Co.,
302 N.E.2d 580, 581-82
(Ohio 1973) (employee who sustained work-related injury which was
treated by plant physicians could not maintain separate medical
malpractice action against physicians for damages stemming from
their negligent misdiagnosis of his injury); Budzichowski v. Bell
Tel. Co.,
469 A.2d 111, 112 (Pa. 1983) (company physicians who
treated worker's employment-related injury were coemployees of
worker, not independent contractors, and were thus immune from
suit for medical malpractice committed during course of that
treatment); Deller v. Naymick,
342 S.E.2d 73, 77-80 (W. Va. 1985)
(employee who sustained a minor knee injury during the course of
his employment could not maintain medical malpractice action
against company doctor for negligent treatment of his injury
where doctor was acting in furtherance of employer's business
when it treated employee).
A minority of courts have concluded that tort actions may be
maintained because a company doctor acts in the dual capacity of
coemployee and physician and, as a physician, has an independent
duty to his or her patients. See, e.g., Wright v. County of
Jefferson,
661 P.2d 1167, 1170 (Colo. 1983) ("[o]ne's need for
protection from medical malpractice is not affected by the
configuration of the employment relationship or the location of
treatment"); Davis v. Stover,
366 S.E.2d 670, 671-72 (Ga. 1988)
("[b]ecause of the relationship between physicians and patients,
company physicians cannot use the Workers' Compensation laws as a
shield to insulate themselves from individual liability for
medical malpractice claims").
Some courts which generally subscribe to the majority rule
have applied the dual capacity approach where medical services
are rendered to a hospital employee at a hospital which also
treats the general public. See e.g., Wright v. State,
639 So.2d 258, 261 (La. 1994) (where plaintiff, a hospital worker who
sustained a work-related injury, was a patient like any other at
the employer-hospital, he would be permitted to maintain a
malpractice action against the co-employee physicians who treated
him); Guy v. Arthur H. Thomas Co.,
378 N.E.2d 488, 492 (Ohio
1978) (where hospital employee received treatment for a work-related injury as a patient and not as an employee, malpractice
action for negligent treatment would be allowed).
With regard to treatment of non-work-related injuries, the
general rule seems to be that an employee may not maintain a
malpractice action against a coemployee physician if the employee
would not have been in the position to receive the negligent care
but for his employment. For example, in the case of Scott v.
Wolf Creek Nuclear Operating Corp.,
928 P.2d 109 (Kan. 1996),
plaintiffs' decedent suffered a non-work-related heart attack
while on the job and, although treated by two company-employed
physician's assistants, died shortly thereafter. Id. at 110.
Plaintiffs filed a medical malpractice action against the two
assistants, as well as their supervising physician, alleging that
decedent lost a chance of surviving the attack because of the
negligent treatment he received. Id. at 111. The defendants'
motion for summary judgment was granted by the trial court on the
ground that the suit was barred by the exclusive remedy provision
of the Workers' Compensation Act and plaintiffs appealed. Ibid.
In its decision affirming the trial court, the Scott court
rejected plaintiffs' argument that they were entitled to maintain
their suit because their claim was for a non-compensable injury.
Ibid. According to the Scott court, plaintiffs failed to
recognize that there was an "important distinction" between a
claim based upon a non-work-related heart attack and a claim
based on the lost chance of surviving a heart attack due to
negligent treatment. Ibid. In the Scott court's view, the
latter claim would certainly be compensable under the Workers
Compensation Act, provided the negligent treatment arose out of
and in the course of the employee's employment. Ibid. The Scott
court concluded that decedent's treatment did so arise because
"[e]ven though the treatment was for a non-work-related injury,
[decedent] received treatment because he was an employee of Wolf
Creek" and thus he "would not have been . . . exposed to the risk
of negligent medical treatment by Wolf Creek physician's
assistants apart from his employment at Wolf Creek." Id. at 112.
Accordingly, the Scott court ruled that plaintiffs' claim was
solely compensable under the Workers Compensation Act. Ibid.
In the case of McNeil v. Diffenbaugh,
434 N.E.2d 377 (Ill.
App. Ct. 1982), plaintiff slipped and injured his back while
unloading a trailer for his employer, Montgomery Ward & Company
Inc. Id. at 379. After his accident, plaintiff sought treatment
from Dr. Willis G. Diffenbaugh, a physician and fellow employee
at Montgomery Ward's medical facility. Ibid. Although
Diffenbaugh treated plaintiff's back injury, he failed to
diagnose or treat an existing malignant tumor in the same area as
the injury. He also failed to diagnose multiple myeloma which
were also in plaintiff's back. Ibid. Thereafter, plaintiff
became paralyzed and then terminally ill as a result of the
myeloma. Ultimately, plaintiff filed suit against Diffenbaugh,
as well as various other parties, alleging medical malpractice
resulting in the aggravation of a non-work-related disease.
Ibid. The trial court subsequently dismissed all counts against
Diffenbaugh and plaintiff appealed. Id. at 379-80.
In its decision affirming the lower court's ruling, the
McNeil court expressly agreed with the lower court that
plaintiff's cause of action against the company physician was
barred by the exclusive remedy provision of the Illinois Worker's
Compensation Act. Ibid. In so ruling, the McNeil court noted
that
It is the status of the person injured at the
time of the injury, not the nature or source
of the injury, that determines the exclusive
application of the Act. It is undisputed
that at the time of plaintiff's back injury
he was an employee of Ward performing his
lawful duties and that he came under co-employee Diffenbaugh's care for treatment of
this injury. Diffenbaugh's `negligence' in
failing to diagnose plaintiff's cancer `arose
out of' and `in the course of' both their
employment at Ward. `In the course of
employment' relates to the time, place and
circumstances of the injury, while `arising
out of the employment' refers to the
requisite causal connection between the
injury and the employment. Thus, the
exclusiveness of the Act precludes a common
law action for damages by an employee against
a co-employee based on the latter's
negligence during the course of their
employment.
[Id. at 380 (citations omitted).]
Accordingly, the McNeil court concluded that plaintiff's injury
was compensable through worker's compensation. Id. at 380.
Illinois' position in such cases subsequently was clarified
in Unger v. Continental Assurance Co.,
481 N.E.2d 684 (Ill.
1985). In Unger, plaintiff underwent what he believed to be a
company-mandated physical examination at a company clinic during
working hours. 481 N.E.
2d at 686-87. During this examination,
which was conducted by staff physician Dr. Carl Hines, a chest x-ray was taken which revealed a malignant mass lesion. Id. at
686. This lesion was not diagnosed by Hines, however, until
another chest x-ray was taken by him during a subsequent
examination of plaintiff more than one year later. Ibid.
Plaintiff subsequently sued Hines, alleging medical malpractice
resulting in the aggravation of a non-work-related disease.
Ibid. Following the trial court's entry of summary judgment in
favor of Hines based upon the exclusive-remedy provision of the
Illinois Worker's Compensation Act, which decision was affirmed
on appeal, the Illinois Supreme Court granted plaintiff's
petition for leave to appeal. Id. at 685.
In its decision affirming the dismissal of the plaintiff's
action against Hines, the Unger Court recognized first that the
pivotal question to be answered before the bar of the exclusive-remedy provision could be invoked was whether or not the injury
arose out of and in the course of employment and was therefore
compensable. Id. at 687-88. Noting that the "status" approach
utilized in McNeil v. Diffenbaugh, supra, somewhat oversimplified
the compensability analysis, the Unger Court considered a variety
of factors including the fact that the examination occurred in a
company clinic during working hours, the fact that plaintiff and
Hines were co-employees, and the fact that plaintiff believed
that the examination was a necessary condition of continued
employment. Id. at 688-89. Relying upon those factors, the
Unger Court ultimately concluded that, notwithstanding the fact
that plaintiff was not initially treated by Hines for a line-of-duty injury, any injury stemming from the negligence of Hines
arose out of and in the course of plaintiff's employment. Id. at
688-89. In so concluding, the Unger Court commented that it
could not "discern a significant difference between the causal
connection of injury and employment in the instant case and the
more common situation of the aggravation of a work-related
injury." Id. at 689. Accordingly, the Unger Court ruled that
plaintiffs' action against Hines was barred by the exclusive-remedy provision of the Illinois Worker's Compensation Act.
Ibid.
In the case of Lesavoy v. Harnes,
484 N.Y.S.2d 988 (Sup. Ct.
1984), plaintiff underwent a series of physical examinations in
the course of her employment which were performed by Dr. Jack
Harnes, a fellow employee. Id. at 989. Although x-rays taken in
conjunction with these exams revealed a cancerous disease process
in her lungs, this condition was not diagnosed by Harnes, who
instead gave plaintiff a "clean bill of health." Ibid.
Plaintiff subsequently brought suit against Harnes, who
thereafter moved for summary judgment on the grounds that
plaintiff's sole remedy was through workers' compensation. Ibid.
In its decision on the motion, the Lesavoy court observed
that the single question involved was whether or not plaintiff's
injury, i.e., the continuing growth of the cancer and its
metastasis to another part of her body, constituted an
"accidental injury" for which workers' compensation would be the
exclusive remedy. Id. at 990. The court noted that while most
accidental injury is caused by "mechanical motion, such as the
movement of a machine, or of a tool, or the falling of a brick,
or the movement of a part of either the body of the worker or the
body of another person," there was no reason why "injury
resulting from the inadvertent inattention of a fellow worker to
the danger in which another may be placed" should not be deemed
accidental as well. Id. at 990-91.
As such, the Lesavoy court ruled that because the cause of
the non-discovery of plaintiff's disease was accidental,
plaintiff's injury could be considered the result of an accident
and therefore solely compensable through workers' compensation.
Ibid. In so ruling, the court emphasized that "[i]t was not the
original disease which is compensable, but the injuries due to
the aggravation, caused by the non-feasance of a co-employee."
Id. at 991. Notably, although ruling in the defendant doctor's
favor, the Lesavoy court noted that it was possible that the
workers' compensation board might find that plaintiff's injury
was not compensable. Ibid. As such, the court decided to stay,
rather than dismiss the case, pending a final determination in a
compensation proceeding, in order to avoid leaving plaintiff
remediless despite what it described as a possibly "meritorious
tort claim." Ibid.
The reasoning employed in another New York case quite
similar to the case at bar, Liantonio v. Baum,
398 N.Y.S.2d 111
(Sup. Ct. 1977), is nonetheless instructive; although the result
reached was ultimately reversed based on plaintiff's after-the-fact discovery that the Department of Sanitation was not covered
by the state Workers' Compensation Act. In Liantonio, plaintiff,
an employee of the Department of Sanitation, fell while on the
job and injured his right shoulder. Ibid. He was treated for
his injury by Dr. Victor Baum, a physician employed by the
department, at the Sanitation Department Clinic. Ibid. Baum
diagnosed plaintiff as suffering from a strained muscle and
advised him to return to work. Ibid. Two months later,
plaintiff broke his right arm and underwent a surgical procedure
performed by a private physician which revealed a large cell
tumor in his right humerus. Ibid. Plaintiff subsequently filed
suit against Baum, alleging medical malpractice resulting in the
aggravation of a non-work-related disease. Ibid.
On Baum's motion for summary judgment, the Liantonio court
ruled that plaintiff's suit was barred by the exclusive remedy
provision of the Workers' Compensation Act and dismissed
plaintiff's complaint. Id. at 112. In so ruling, the Liantonio
court rejected plaintiff's contention that his injury was not
incidental to, nor did it arise out of his employment with the
Sanitation Department, as well as his argument that the fact that
he was denied job-related disability confirmed that the pre-existing tumor did not come about as a result of his activities
in the course of his employment. Ibid. According to the
Liantonio court:
The flaw in plaintiff's argument is that
he has not used the term injury in its
correct perspective. Plaintiff, indeed,
suffers from a cell tumor in his right
humerus. However, the injury which is the
basis of the instant lawsuit is not the
tumor, but rather it is the alleged
misdiagnosis by defendant of plaintiff's pre-existing condition and defendant's failure to
properly treat plaintiff. That injury, the
proof of which is necessary to make a prima
facie case, most certainly is incidental to
and arose out of his employment; e.g.,
plaintiff's contact with defendant-physician
was at the Sanitation Department Clinic to
which only employees are admitted, and
furthermore plaintiff would not have been
examined and diagnosed by the defendant
unless he was an employee of the Sanitation
Department, as was the defendant.
[Ibid.]
Finally, in Darensburg v. Tobey,
887 S.W.2d 84, 90 (Tex. Ct.
App. 1994), plaintiff suffered a work-related injury to his wrist
which was misdiagnosed, and consequently mistreated, by a company
physician resulting in further injury to his wrist. Id. at 85.
Plaintiff filed a malpractice action against the doctor for the
aggravation of the original injury caused by the misdiagnosis.
Ibid. The trial court subsequently dismissed the case as barred
by the exclusive remedy provision of the workers' compensation
statute and plaintiff appealed. Ibid.
Notably, in its decision affirming the result below, the
Darenburg court accepted plaintiff's contention that the
aggravation of his wrist injury was not immediately identifiable
as a work-related injury. Id. at 87. Nonetheless, the court
ultimately concluded that the second injury was, in fact, work-related, reasoning as follows:
Our review of the summary judgment
evidence shows that [plaintiff] was only
permitted to see [the company physician] as a
result of his employment with [the company].
[The company] facilities were not open to the
general public and [plaintiff] was authorized
to treat only [company] employees. [The
company] made a business decision to provide
on-site health care for employees, and it was
in the furtherance of this business interest
that [plaintiff] allegedly sustained an
additional injury. Thus, we conclude that
the alleged aggravation of [plaintiff's]
injury occurred in the course and scope of
[plaintiff's] employment and is a work-related injury.
[Ibid.]
In view of its finding that plaintiff's injury was work-related
and also that the company physician was not an independent
contractor, the Darenberg court found that the lower court had
properly dismissed the action as barred by the workers'
compensation statute. Id. at 90.
In the present case, in addition to the weight of authority,
we are influenced by the fact that tort immunity is one of the
linchpins of the workers' compensation scheme:
In 1911, in response to these common-law
inequities, the legislature passed our
Workers' Compensation Act. L. 1911, c. 95.
This legislation involved a historic trade-off whereby employees relinquished their
right to pursue common-law remedies in
exchange for automatic entitlement to
certain, but reduced, benefits whenever they
suffered injuries by accident arising out of
and in the course of employment. Thus the
quid pro quo anticipated by the Act was that
employees would receive assurance of
relatively swift and certain compensation
payments, but would relinquish their rights
to pursue a potentially larger recovery in a
common-law action.
[Millison v. E.I. du Pont de Nemours & Co.,
101 N.J. 161, 174 (1985).]
This statutory framework should not easily be circumvented. Id.
at 178. In this vein, the language in section 8 immunizing co-employees leaves little room for maneuver.
Finally, the issue of tort liability of employee-physicians
is probably best left to a comprehensive review in the
Legislature. The issue is potentially broader than the plant
physician treating an industrial accident. It is not
inconceivable in today's health care climate that some employers
will employ physicians to provide general health care to
employees. In any event, creating a significant breach in the
otherwise sturdy wall of co-employee immunity is not the
privilege of an intermediate appellate court.
We conclude that Hawksby may not maintain a tort action
against Dr. DePietro based on his failure to diagnose the cancer
during his treatment of Hawksby's compensable injury. Our
holding is limited to these facts, and we neither express nor
imply an opinion regarding negligent treatment of a non-compensable injury, illness or condition.
Affirmed.See footnote 1
Footnote: 1The order entered in the Workers' Compensation Court is not before us. As indicated, it was an order approving a settlement as authorized in N.J.S.A. 34:15-20. It does not appear, therefore, that the compensability of the alleged misdiagnosis was actually adjudicated. Hawksby was represented by a different set of attorneys in the compensation case.