DocketNumber: No. 10013
Citation Numbers: 55 S.E.2d 88, 132 W. Va. 430
Judges: Haymond, President:
Filed Date: 3/8/1949
Status: Precedential
Modified Date: 1/13/2023
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. *Page 453
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,
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,
The majority opinion states that in the case of Conley v.Hill,
"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., *Page 455 "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,
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 *Page 457 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,
The attempted distinction of the cases of Mercer v. Ott,
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,
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.,
The case of Crab Orchard Imp. Co. v. Chesapeake O. Ry. Co. (4th Cir.),
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. *Page 460
Crab Orchard Improvement Co. v. Chesapeake & O. Ry. Co. , 115 F.2d 277 ( 1940 )
Froid v. Knowles , 95 Colo. 223 ( 1934 )
Huntoon v. Pritchard , 371 Ill. 36 ( 1939 )
Hinkelman v. Steel Corp. , 114 W. Va. 269 ( 1933 )
Baker v. Hendrix , 126 W. Va. 37 ( 1943 )
Hardin v. Appeal Board , 118 W. Va. 198 ( 1937 )
Conley v. Hill , 115 W. Va. 175 ( 1934 )