Makarenko v. Scott , 132 W. Va. 430 ( 1949 )

If I correctly understand the majority opinion, it is based alternatively upon two propositions:

First: That no right of action against a doctor accrues to a person injured by the wrongful act of another when the injury is treated negligently by the doctor, with the result that the damage done by the original injury is increased, and, by analogy, no right of action is created by the malpractice of a doctor upon a person suffering an injury that has been compensated under the workmen's compensation act.

Second: That even though a right of action against the doctor at fault does arise, any liability that the doctor may have incurred is fully discharged where the person injured accepts a workmen's compensation award paid on the account of the person in whose employ he was when injured.

In my opinion, both are thoroughly unsound and neither is supported by the cases cited in the majority opinion as sustaining it.

It is correct that the original wrongdoer is liable to the person injured by his wrongful act for the negligent treatment of his injury by a doctor. One who wrongfully harms the person of another cannot be permitted to muddy a recovery of damages by adroitly involving a doctor. If that were not the rule the quantum of damages would be a real issue in all cases of even admitted liability, favoring the initial wrongdoer. However, if he who suffered both wrongs believes that the evidence of damage done by the malpractice is distinct and outstanding, he may elect to sue the doctor first. In that case a judgment against or settlement with the defendant does not include the initial tort-feasor, of course, who may be afterward proceeded against for the wrong done by his negligence separate from that of the doctor, the burden of proof as to damages in each case resting upon the plaintiff. The rule goes to the measure of damages, however, and not to the absorption by the first wrongdoer of the wrongful act of the second, thus preventing a cause of action from arising against the doctor. None of the cases cited in the majority opinion indicates that a cause of action does not arise against the doctor.

In Mier v. Yoho, 114 W. Va. 248, 171 S.E. 535, this Court did not reject the contention of the plaintiff that a separate cause of action arose, as the majority opinion states. It held to the exact contrary by stating in the second syllabus that the "unqualified release" of the principal tort-feasor operated to prevent the recovery by the injured person for the result of the doctor's alleged negligence. It is to be noted that the syllabus referred to speaks of an unqualified release, necessarily implying that a release which is qualified in that respect would have a different effect. If the release "prevents" recovery, it necessarily operates upon the existence of something to be released, and that something is a right against the doctor, for if there were no right, no release or other bar would be necessary to "prevent" recovery.

As bearing out the distinction drawn in the Yoho case between unqualified and qualified releases of the principal tort-feasor, the following cases will be found to give effect to a reservation of the right to sue the physician in a release of the principal tort-feasor. Armieri v. St. Joseph's Hospital,159 Misc. 563, 288 N.Y.S. 483; Staehlin v. Hochdoerfer, (Mo.),235 S.W. 1060.

The majority opinion states that in the case of Conley v.Hill, 115 W. Va. 175, 174 S.E. 883, this Court "applied the principle that the only cause of action of an injured person for damages for personal injuries which are aggravated by negligent and unskillful treatment rendered by a physician is against the wrongdoer who caused the original injury". With every deference, that statement is plainly in error. In that case a settlement had been made with the original wrongdoer evidenced by an unqualified release which was made the basis of the dismissal "with prejudice" of a pending action against him. A casual reading of the opinion will show that its entire purport and tenor is that the release and dismissal "extinguished" the rights of the person injured as against the doctor for wrongful treatment. The Conley opinion contains this language:

"Therefore, the dismissal, 'with prejudice', being determinative of plaintiff's rights against the original wrongdoers, under the case of Mier v. Yoho, supra, extinguishes any rights theretofore had against the defendants due to any act of malpractice up to the date of the institution of said action."

Since extinguishing a right presupposes that the right exists, the Conley case holds by inevitable corollary that there is a separate right of action against the doctor; not that no such right exists.

An examination of the numerous cases cited in the majority opinion following the reference to 15 Am. Jur., "Damages", Section 85, will show that they all deal with the satisfaction or transfer of the right against the doctor, and that none of them hold that right to be nonexistent.

Believing that the cases cited in the majority opinion upon the first proposition, sustain, instead of defeat, the existence of a right of action against a doctor under the circumstances of this case, if I have correctly understood the majority opinion, I disagree with the first proposition. I think that the person injured by malpractice may forego his right against the tort-feasor for his initial injury and sue the doctor who negligently contributed, perhaps overwhelmingly, to the wrongful first harm.

But conceding that there is a separate right of action against the doctor-wrongdoer which is extinguished by a settlement resulting in a general release of the principal tort-feasor, is the payment of workmen's compensation to the person injured a settlement in full that has the same effect? I see no way that it could be on any sound principle. Remembering that the effect of a release, or settlement, that forms the basis of the underlying rule, rests upon the intention of the parties, I have no difficulty in reaching the conclusion that the acceptance of payment of a contractual obligation (Gooding v. Ott, State Compensation Commissioner,77 W. Va. 487, 87 S.E. 862; Hardin v. Workmen's CompensationAppeal Board, 118 W. Va. 198, 189 S.E. 670; Lancaster v. StateCompensation Commissioner, 125 W. Va. 190, 23 S.E.2d 601) does not, per se, release a third person from a tort liability, as malpractice is in this jurisdiction. Kuhn v. Brownfield,34 W. Va. 252, 12 S.E. 519; Baker v. Hendrix, 126 W. Va. 37,27 S.E.2d 275. The brief for the defendants below, defendants in error, treats the compensation act as effecting a "release" of the employer's liability to the employee, as is done by the release from liability of the wrongdoer in a tort case. To the contrary, the act replaces the tort responsibility of the employer with the contractual responsibility under its provisions, Code, 23-2-6, expressly providing that a subscriber in good standing "shall not be liable to respond in damages at common law or by statute for the injury or death of any employee however occurring, * * *". The award of compensation is not based upon the wrong of the employer, and it may be entirely due to the simple negligence of the employee or pure accident. It does nothing more than partly recompense the injured person for his lost earning power. Code, 23-4-6. It pays nothing for unliquidated damages, including disfigurement, deformity, anguish, pain, suffering, or the wanton disregard of the rights of others. The measure of damages of the two have only one element in common: lost earning power; and of that the workmen's compensation act makes only a partial restitution. It is true that in many of the compensation acts of other jurisdictions there is an express provision which subrogates the right of the employee to the employer or to the administrator of the fund. That is true of the Oregon statute, mistakenly stated in the majority opinion to contain pertinent provisions similar to those of our act, upon which is based the holding in Williams v. Dale, 139 Or. 105, 8 P.2d 578, 82 A.L.R. 922. The Oregon statute contains, as ours does not, an express subrogation provision quoted in the Williams opinion. Therefore, its "pertinent provisions" are not similar to those of our compensation act. An investigation will show that in each case cited in the majority opinion, the compensation statute upon which it rests has in it an express provision which prevents recovery. Our act has no such provision.

Therefore, because of the pronounced dissimilarity and different nature of the cases, one on contract and the other for tort, and because of the absence of a subrogation clause or other similar provision in our workmen's compensation statute that would bar recovery, I am of opinion that the award of compensation does not bar the recipient from recovery against a physician who has negligently treated the injury for which compensation has been awarded.

I believe that the opinion in the case of Tawney v. Kirkhart,130 W. Va. 550, 44 S.E.2d 634, overruling the case of Hinkelmanv. Wheeling Steel Corporation, 114 W. Va. 269, 171 S.E. 538, is misunderstood by the majority. The Hinkelman case was overruled because its decision, holding that the conduct of the doctor was that of the employer and that liability rested upon the employer alone, and came within the employer's protection under the compensation act, ignoring the fact that the doctor's acts were his own acts for which he was responsible, was thought by the majority of the Court to be erroneous. The statement in theHinkelman opinion that our compensation act contained a provision that for the injury or death of an employee of a subscriber to the fund, there should be no liability aside from compensation, either at common law or by statute, whereas the section referred to in the opinion contained no such provision nor did it appear elsewhere, was also considered in overruling. The Kirkhart opinion, however, goes further and gives several outstanding reasons why, in the absence of such statutory provision, the rule of the Hinkelman case gratuitously exempting a doctor who has no contractual relationship with the plaintiff except that of physician and patient, from liability for malpractice, could not be sustained. Since the Kirkhart decision we have had no change in our related statutes. Yet this case reestablishes exactly the same rule laid down in theHinkelman case: that there can be no recovery against a doctor for malpractice by a compensation claimant for the negligent treatment of a compensable injury. So, notwithstanding the distinction attempted in the majority opinion, we are back to exactly the situation respecting such matters as existed before the Kirkhart case was decided.

The attempted distinction of the cases of Mercer v. Ott,78 W. Va. 629, 89 S.E. 952, and Merrill v. Marietta TorpedoCompany, 79 W. Va. 669, 92 S.E. 112, L.R.A. 1917F 1043, from the case at hand begs the question under consideration. For the correct application of the Ott and Merrill cases see 3 Schneider Workmen's Compensation 476, and footnotes. By confusing the wrongful act of injury for which recovery is sought from the doctor, with that of the employer which preceded it, and further by thinking that because the employer is liable in damages for the act of the doctor, the doctor can commit no independent wrong, the position of the majority becomes unique. I believe that a reading of the Ott andMerrill cases will show that both apply in principle to this case, even though, as is stated with emphasis in the majority opinion, the facts are not identical.

As holding a physician liable in an action by the person injured for malpractice in the treatment of an injury for which compensation had been received, see Huntoon v. Pritchard, 280 Ill. App.? 440. This opinion contains what seems to be a thorough and exhaustive review of the cases of this country having to do with third party liability and subrogation under the various compensation acts, the clear majority sustaining the reasoning of the court in the Huntoon case. This decision was affirmed by the Illinois court of last resort. Huntoon v.Pritchard, 371 Ill. 36, 20 N.E.2d 53.

For a clear discussion of the distinction of third party liability in tort and the payment of compensation because of a contractual relationship created by the compensation act between employer and employee as a fundamental reason for not relieving a doctor from liability for malpractice in a compensation case, see McGough v. McCarthy Improvement Co.,206 Minn. 1, 287 N.W. 857. To the same effect see Froid v. Knowles,95 Colo. 223, 36 P.2d 156.

The case of Crab Orchard Imp. Co. v. Chesapeake O. Ry. Co. (4th Cir.), 115 F.2d 277, discusses the question of subrogation fully. The opinion applies the Ott and Merrill cases as they are applied in this dissent.

The law does not favor the wrongdoer, and yet, under the rule laid down by the majority opinion, as I understand it, an employer without fault may be required to respond in compensation to an employee whose injury is due to his own negligence, while a doctor plainly guilty of malpractice in treating the injury is completely protected by the money paid by a blameless subscriber to the fund. It puts the compensation patient in a legal class by himself without an enforceable right of any kind. I do not believe that doctors as a whole need nor desire that type of protection. To have it known that they did would detract from public confidence and lower the earned dignity of their profession.

For the reasons stated I believe that none of the cases cited in the majority opinion sustain its conclusion and that its reasoning is unsound. On the contrary, I believe that the great weight of authority is that under the circumstances of this case, the doctor is liable, though in a tort case the harm done by malpractice may be charged against the principal tort-feasor, and if recovered from him may not be recovered against the doctor as well.

I therefore respectfully dissent and am authorized to say Judge Lovins joins herein.