ROSS v. SCHUBERT, 180 Ind. App. 402 (1979)

388 N.E.2d 623, 396 N.E.2d 147

No. 2-1176A429.Court of Appeals of Indiana.
Filed April 30, 1979. Rehearing dismissed November 13, 1979. Transfer denied March 4, 1980.

1. WORKMEN’S COMPENSATION — Physicians — Immunity. — The fact that a physician is employed by a company does not insulate him from liability arising out of the performance of professional medical services. p. 405.

2. WORKMEN’S COMPENSATION — Physicians — Independent Contractor. — The right to control not only the end result of another’s labors, but also the manner in which

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the work is performed, is the dispositive criterion in determining contractor or an employee. Since a company has no control over a doctor’s performance of his professional duties, the doctor is an independent contractor. p. 409.

3. TORTS — Loss of Consortium. — A wife is entitled to recover for loss of consortium against a wrongdoer who has injured her husband. A cause of action for loss of consortium derives its viability from the validity of the claim of the injured spouse against the wrongdoer. p. 411.

Appeal from an adverse judgment in medical malpractice action.

From the Huntington Circuit Court, Dane Mann, Judge.

Reversed by the Fourth District.

David Peebles, Robert Thompson, Peebles, Thompson, Rogers Hamilton, of Fort Wayne, James W. Bowers, Palmer, Bowers Brewer, of Huntington, for appellant.

Milford M. Miller, Grant F. Shipley, Livingston, Dildine, Haynie Yoder, of Fort Wayne, Williams P. Dorr, Lord, Bissell Brook, of Chicago, Illinois, Ted S. Miller, Gordon, Glenn, Miller, Bendall Branham, of Huntington, for appellee.

CHIPMAN, P.J.

Appellants Wilburn R. Ross (Ross) and his wife, Bernadine M. Ross, sued the physician defendants for damages based on alleged medical malpractice. This appeal from an adverse verdict and judgment raises one issue: Do the “fellow employee” immunity provisions of the Indiana Workmen’s Compensation Act protect a company physician from a claim of medical negligence brought by an employee of the same company. We conclude they do not and reverse.

FACTS

Ross was employed as a factory worker by International Harvester Company at its Fort Wayne plant. The three defendants are all licensed Indiana physicians who were employed on a part-time basis by International at its clinic located in the same plant; they met all the requirements for being salaried employees of International.

While employed at International Ross became partially disabled due to a nonindustrial accident and was subsequently assigned to light duty work under the handicap job program provided by International.

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Periodically those assigned to this program are examined by the doctors at the company clinic to determine if they have recovered and can thus return to their normal factory work or can be assigned to jobs requiring less restrictions. In accordance with this procedure, Ross was examined by one of the defendants and a determination was made that he could perform regular factory work with some weight lifting limitations. Ross started his new job and three days later was unable to continue; a determination was made that he was permanently disabled. Ross alleges that his disability was caused by various negligent acts of the three defendants with regards to his reclassification and the treatment he received when he reported soreness after beginning his new job.

The issue before us was raised by various instructions tendered by the defendants and given by the court over Ross’ objection. The crucial instruction stated, in effect, that if the jury found the defendant doctors were employees of International, then they were immune from a claim of damages based on malpractice.[1]
The premise for this instruction would

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obviously be that the Workmen’s Compensation Act would provide the exclusive remedy if the harm to that employee was caused by the negligence of a fellow employee. IND. CODE 22-3-2-13.

CONCLUSION

After carefully studying the history of the Indiana Workman’s Compensation Act and examining its provisions, we are unable to discern from the Act any legislative design to immunize [1] physicians from medical malpractice claims or to interfere with the customary physician-patient relationship. It is our opinion that it would torture the Indiana legislature’s intent, as evidenced by its objectives in enacting the Act, to let the simple rubric of “in the same employ” insulate physicians from liability arising out of the performance of professional medical services.

This court is mindful that when construing statutes, the cardinal principle is to ascertain and give effect to the legislature’s intent. City of Indianapolis v. Ingram (1978), 176 Ind. App. 645, 377 N.E.2d 877. The crucial determination in this case is whether a doctor is an individual “in the same employ” as the person injured within the meaning of the statute, IND. CODE 22-3-2-13.[2] Since “it is highly desirable that a statute be given a similar interpretation by the several states wherein it is in force,” Witherspoon v. Salm (1969), 251 Ind. 575, 243 N.E.2d 876, we have examined at length the interpretations which other jurisdictions have placed upon similar statutes.[3] Although the statutes themselves are not

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markedly dissimilar, the variety of results which have been reached is literally rivaled only by the variety of tests which have been employed to justify these conclusions. We will, therefore, be primarily guided by the Indiana legislature’s purpose in enacting our Act as well as the Indiana Supreme Court’s interpretation of the applicability of earlier provisions of the Act to a company physician.[4]

The Act initially developed because of the obstacles and delays which hindered the working person’s ability to recover against an employer for industrial related accidents. This undesirable situation proved to be the principle impetus behind the abolishment of common law actions against the employer and the substitution of a no-fault system of recovery. Vargo, Workmen’s Compensation, 8 IND.L.REV. 289 (1974). Under the Act the employee was given a statutory right to compensation, regardless of fault, and the employer’s liability was limited to that provided by the Act. North v. United States Steel Corp., (7th Cir. 1974) 495 F.2d 810. Thus, the immediate purpose and effect of the Workmen’s Compensation Act was to control and regulate relations between an employer and his employees. Artificial Ice Cold Storage Co. v. Waltz (1925), 86 Ind. App. 534, 146 N.E. 826. As between them, the Act still provides the exclusive remedy for industrial accidents. IND. CODE 22-3-2-6;[5] Kottis v. United States Steel Corp. (7th Cir. 1976), 543 F.2d 22;

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Needham v. Fred’s Frozen Foods, Inc. (1977), 171 Ind. App. 671, 359 N.E.2d 544; Stainbrook v. Johnson County Farm Bureau Co-operative Association, Inc. (1954), 125 Ind. App. 487, 122 N.E.2d 844.

Since the Act’s inception, it has been the employment relationship which is to delineate its perimeters of immunity. In enacting the Workmen’s Compensation Act, the legislature never manifested a desire to reach beyond the employment relationship and benefit a third party. Thus, the Act was never intended to abridge the remedies an employee has in tort against a third party.

The 1929 version of what is now IC 22-3-2-13 stated:

Whenever an injury or death, for which compensation is payable under this Act [§§ 40-1201 — 40-1414, 40-1503 — 40-1704], shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, [i.e. a third party], the injured employee, or his dependents, in case of death may commence legal proceedings against such other person to recover damages. . . .

The applicability of this statutory language to a situation involving a company physician was addressed by our Supreme Court in Seaton v. United States Rubber Company et al. (1945), 223 Ind. 404, 61 N.E.2d 177.

In Seaton, Dorothy Seaton had brought an action against both United States Rubber Company and Dr. Edmond Haggard to recover for injuries she sustained while working for the corporation. Her injuries were allegedly aggravated because of the malpractice of Dr. Haggard who was employed as a physician by the corporation and was in charge of its first aid department. The Court found that the Workmen’s Compensation Act provided the exclusive remedy in so far as the company was concerned, but the Court permitted the action against Dr. Haggard, stating:

In other jurisdictions where such an action is permitted, [malpractice action against company physician] it is based upon the theory that the physician, whether hired by the employer or not, is a third party within the contemplation of their workmen’s compensation act. . . .

This we believe to be the correct rule. (emphasis added)

Under the common law a doctor faced potential liability for malpractice;

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he retained this liability when the Court in Seaton held that a doctor was a third party within the ambit of the Act. We do not believe the legislature’s subsequent insertion of the words, “and not in the same employ” was intended to abrogate the Court’s interpretation that the Act failed to immunize physicians.

Although the Court in Seaton merely said that a physician was a third party under the Act without addressing why he belonged in this classification, other cases have held that when physicians practice medicine they are independent contractors, Iterman et al. v. Baker (1938), 214 Ind. 308, 15 N.E.2d 365, and that independent contractors are third parties under the Act. See Merritt v. Johnson (S.D.Ind. 1961), 190 F. Supp. 454. Amending IC 22-3-2-13 certainly did not change a doctor’s status from third party/independent contractor to that of fellow employee.[6] When the legislature amended IC 22-3-2-13, they must be deemed to have been cognizant of the court’s determination that physicians employed by corporations were liable as third parties, and in light of this knowledge, they retained the employee’s right to proceed against a third party. Thus, the common law right of an injured employee to maintain an action against a physician for malpractice remained unaltered because it was not expressly or by necessary inference curtailed or denied.[7] We note that while a measure of liberality is indulged

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in construing the legislative definition of “employee”[8] to the end that an injured workman or his dependents may not be deprived of the benefits of the Act, Meek v. Julian (1941), 219 Ind. 83, 36 N.E.2d 854, we find no similar position toward expanding the construction of “in the same employ” for purposes of permitting individuals to escape liability. The suggestion that the legislature intended, by this amendment, to include the company physician as a fellow employee of the injured industrial worker is a startlingly illogical concept. To hold that these doctors were not third parties under the Act would be inconsistent with Seaton’s interpretation of the Act’s intent as well as cases outside the area of workmen’s compensation law which have consistently held that a doctor, even though employed by an entity, is personally liable as an independent contractor when he engages in the practice of medicine.[9]

Regardless of the extent of their affinity with the corporation, these physicians were not under the corporation’s control when they exercised their professional skills. [2] Their professional status and non-comitant freedom to exercise discretion in their medical treatment prevented the corporation from controlling their actions. It has generally been recognized that the right to control not only the end result of another’s labors, but also the manner in which the work is performed, is the dispositive criterion in determining whether an individual is an independent contractor or an employee. B. SMALL, WORKMEN’S COMPENSATION LAW OF INDIANA § 4.2, at 66 (1950); Note The Malpractice Liability of Company Physicians 53 IND.L.J. 585, 588

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(1978). Because of the peculiar nature of the profession, “a licensed physician may not accept directions and instructions in diagnosing and treating ailments from a corporation or an individual who is not a licensed practitioner.” Iterman et al. v. Baker, supra at 370. International Harvester, therefore, could not control the manner in which these physicians rendered treatment to Ross, and consequently, they remained independent contractors.

The liability of these physicians arose from their independent exercise of medical judgment, that is, it arose from their doctor-patient relationship with Ross and not from the employer-employee relationship which the Act was designed to regulate.[10] We have not permitted physicians to escape liability by working for hospitals or forming medical corporations, and it is our opinion that the Workmen’s Compensation Act was, likewise, never intended to abrogate the rights of an employee who stands in the shoes of a patient, from suing a doctor who treats him.

This court is not persuaded that we should sanction protection of company physicians while at the same time hold liable independent physicians who provide identical services. In either circumstance, the liability arises because of the individual doctor’s exercise of medical judgment. Where that judgment is exercised, i.e., upon the company’s premises as opposed to the physician’s private office, should not be the determinative factor as to whether or not an individual may bring an action for medical malpractice since in both instances, the physician controls the manner of medical treatment. To hold otherwise would encourage the company physician to be less assiduous.

That independent professions by the fact of business contact with the employer should be absolved of responsibility for mistake, avoidable or unjustified neglect resulting in secondary affliction, seems obnoxious to the purpose and spirit of such a statute. To so hold might induce industry to encourage quackery, and place a premium upon negligence, inefficiency and wanton disregard of

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the professional obligations of medical departments of industry, toward the artisan.

Duprey v. Shane (1952), 39 Cal.2d 781, 249 P.2d 8; Hoffman v. Rogers (1972), 22 Cal.App.3d 655, 99 Cal.Rptr. 455. Clearly, forcing the wrongdoer to bear the cost of his wrong,[11] rather than industry, will have a salutory effect in that it will operate as an incentive for careful conduct.

We find nothing in our Workmen’s Compensation Act which indicates the Act was intended to shield a physician from the legal obligations entailed by the doctor-patient relationship.[12] We, therefore, hold that these physicians were not immune from liability by virtue of IC 22-3-2-13 when they engaged in the practice of medicine. We emphasize, however, that Ross must still prove the negligence which he alleges.

Because Mr. Ross’ claim is not barred by the exclusive [3] remedy provisions of the Act, we also reverse the judgment entered against Mrs. Ross.

The law in Indiana is clear that a wife is entitled to recover for loss of consortium against a wrongdoer who has injured her husband. . . . [A] cause of action for loss of consortium derives its viability from the validity of the claim of the injured spouse against the wrongdoer.

Arthur v. Arthur (1973), 156 Ind. App. 405, 296 N.E.2d 912. The Workman’s Compensation Act would, thus, likewise not preclude Mrs. Ross’ separate claim for damages because of the doctors’ alleged malpractice. See O’Dell v. State Farm Mutual Automobile Insurance Company (1977), 173 Ind. App. 106, 362 N.E.2d 862 Arthur, supra.

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We reverse.

Miller and Young, JJ. concur.

NOTE — Reported at 388 N.E.2d 623.

ON PETITION FOR REHEARING

CHIPMAN, J.

The initial appeal of this cause was decided by our court April 30, 1979. Ross v. Schubert (1979), 180 Ind. App. 402, 388 N.E.2d 623. On May 19, 1979, the appellees filed a petition which they designated a “Petition for Rehearing.” No brief of supporting argument accompanied this petition. On May 24, 1979, the appellants filed a motion to dismiss the petition for rehearing and a brief in support of this motion. Appellants have asked this court to dismiss the petition for rehearing because of the appellees’ alleged failure to comply with Indiana Rules of Procedure, Appellate Rule 11(A); they contend the appellees have not complied with AP. 11(A) because they have improperly interspersed extensive argument into their petition. We agree with the appellants and hereby grant the appellants’ motion to dismiss.

This court, as well as all litigants who come before us, must comply with the procedural rules adopted by the Indiana Supreme Court. It is our duty to obey these rules and adhere to the construction which has been placed upon them. Appellate Rule 11(A) reads in pertinent part as follows:

Application for a rehearing of any cause may be made by petition, separate from the brief, signed by counsel, and filed with the clerk within twenty (20) days from rendition of the decision, stating concisely the reasons why the decision is thought to be erroneous. Such application may, if desired, be supported by briefs, but such briefs will not be received after the time allowed for filing the petition. . . .

Our review of Appellate Rule 11(A) discloses it was modeled after the old Supreme Court Rule 2-22. Lamb v. Thieme (1977), 174 Ind. App. 287, 369 N.E.2d 681; Wyler v. Lilly Varnish Co.
(1970), 146 Ind. App. 91, 255 N.E.2d 123. In fact, its language is for the most part identical to that found in the old rule; therefore, in ruling upon appellants’ motion to dismiss, we have primarily relied upon cases which interpreted Rule 2-22.

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It is clear our Supreme Court has held the commingling of argument with the petition for rehearing is sufficient grounds for dismissing the petition for failure to conform with our rules of appellate procedure. Automobile Underwriters, Inc. v. Smith
(1961), 241 Ind. 302, 171 N.E.2d 823; Dorweiler v. Sinks
(1958), 238 Ind. 368, 151 N.E.2d 142; see also Lamb v. Theime
(1977), 174 Ind. App. 287, 369 N.E.2d 681; Hedgecoth v. Hedgecoth (1966), 139 Ind. App. 162, 216 N.E.2d 358; Estate of McClain v. McClain (1962), 133 Ind. App. 645, 184 N.E.2d 281; 4A B. BAGNI, L. GIDDINGS K. STROUD, INDIANA APPELLATE PROCEDURE § 152 (1979). The petition for rehearing must not be in argumentative brief. In Automobile Underwriters, Inc. v. Smith
the Court affirmatively stated:

Automobile Underwriters, Inc. v. Smith, 171 N.E.2d at 825. Thus, although it is not required that the reasons why our decision is believed to be erroneous be supported by argument, it is required that if the party wishes to so support his reasons, this argument must be separate from the petition in the form of a brief.

The appellees in their reply in opposition to the motion to dismiss contend their petition for rehearing set forth the reasons why they believe this court erred in a specific and concise fashion. Our review of appellees’ thirty page petition for rehearing, however, discloses what we believe goes beyond a concise statement of errors. Clearly the appellees were permitted under our rules to state where they believed we erred and the reason for this belief, but they were not permitted to argue at length in their petition for rehearing through the use of hypotheticals and argumentative allegations. Their petition for rehearing is drafted in such a manner that they have, in effect, attempted to make this court their adversary; this is not the function of a petition for rehearing. Allegations such as those made by the appellees that our earlier opinion was “faulty, erroneous and pure balderdash” are unmistakably inappropriate for a petition for rehearing. We do not believe such allegations, or the other argumentation and hypotheticals found in the appellees’ petition for rehearing meet the requirements under

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AP. 11(A) of being a concise statement of why our decision is thought to be erroneous; therefore, we dismiss the appellees’ petition for rehearing.

Petition for rehearing dismissed.

Miller, P.J. and Young, J. concur.

NOTE — Reported at 396 N.E.2d 147.