Opinion
No. WD 59490
March 12, 2002
Appeal from the Circuit Court of Jackson County, Missouri Honorable Lee E. Wells, Judge.
Sherwin L. Epstein, John W. Roe, and Mark H. Epstein, Kansas City, MO, Attorneys for Appellants.
Elvin S. Douglas, Jr., Harrisonville, MO, Attorney for Respondent.
Before Newton, P.J., Lowenstein and Smart, J.J.
The plaintiff in this case sustained injuries arising out of and in the course of her employment. She sued the defendant, a consulting doctor, for medical malpractice for additional injuries suffered as a result of his negligent diagnosis. The sole question on appeal is whether a medical malpractice civil suit may be brought by an employee who sustained additional injuries beyond her original compensable injuries, which were caused by a physician selected by the employer's physician to render a "second opinion," or if such additional injuries are jurisdictionally limited to a decision under Chapter 287, RSMo 2000 (The Workers' Compensation Law).
On April 9, 1998, appellant, Rhonda James (James), was employed as a nurse's assistant by Heartland Hospital when she was kicked by a patient in her left neck and shoulder area. Due to her injuries, she was examined at the Heartland Hospital's emergency room. James was then sent by her employer to Dr. Davin Turner for treatment of her injuries. When Dr. Eduardo Gamboa, a consulting neurologist, told Dr. Turner that an MRI of the brain without contrast and an ANA profile might need to be performed, Dr. Turner recommended that James see the respondent, Dr. Michael Poppa (Dr. Poppa), for a second opinion.
James was examined by Dr. Poppa in July of 1998. Based on Dr. Poppa's examination of James, Dr. Poppa concluded that she had reached maximum medical improvement. He released James to return to work with no restrictions and determined that she had a four percent permanent partial disability of the body as a whole. Dr. Poppa also indicated that James required no further medical treatment and instructed her to stop taking the prescription drug Elavil.
Relying on Dr. Poppa's findings, Heartland Hospital ceased its authorization for further medical treatment and required James to return to work full-time without restrictions. After James had been back to work for three days, she suffered a relapse of her condition. James alleges that as a result of the relapse in her condition, due to Dr. Poppa's improper and inappropriate medical opinions, she has been forced to undergo extensive medical and psychological treatment with numerous doctors. She has also been hospitalized due to the effects of her condition, Reflex Sympathetic Dystrophy, which is a permanent condition.
James filed this suit for medical malpractice against Dr. Poppa and Occupational Health Services, Inc. (OHS), alleging negligence. Dr. Poppa and OHS filed a motion to dismiss arguing that the trial court lacked subject matter jurisdiction because the complaints in James' petition fell within the exclusive jurisdiction of the Workers' Compensation Division (Division). The trial court entered an order of dismissal finding that the Division had exclusive jurisdiction over James' claims. This appeal followed.
Standard of Review
"A motion to dismiss for lack of subject matter jurisdiction is an appropriate means of raising the Workers' Compensation Law as a defense to a common law tort action." Gabler v. McColl , 863 S.W.2d 340, 342 (Mo.App. 1993). The trial court should grant a motion to dismiss when it appears by a preponderance of the evidence that the court lacks subject matter jurisdiction. Burns v. Employer Health Servs., Inc . , 976 S.W.2d 639, 641 (Mo.App. 1998). Use of the term "appears" suggests the quantum of proof is not high. Id . It is the movant's burden to show that the trial court is without jurisdiction. Id . "The question of whether there is subject matter jurisdiction is a question of fact left to the sound discretion of the trial judge." Gabler , 863 S.W.2d at 342 . The trial court may review affidavits, exhibits and evidence pursuant to Rules 55.27 and 55.28 on the question of jurisdiction. Id .
I.
James argues in her sole point on appeal that the trial court erred in dismissing her petition because her malpractice claim is not barred by the Missouri Workers' Compensation Law (WCL) in that nothing in the WCL bars a claim against a physician who has aggravated a compensable injury by malpractice. Specifically, James argues that a physician is a "third person" under § 287.150, RSMo 2000.
All statutory references are to the Revised Missouri Statutes 2000, unless otherwise indicated.
Section 287.120 governs the determination of when an injury falls under the WCL, giving the Division exclusive jurisdiction. Burns , 976 S.W.2d at 642 . "In this respect, the WCL is wholly substitutional in character and works to deprive an employee of his or her tort claim against an employer and its agents, assuming that the law applies." Id . Section 287.120 states, in pertinent part:
1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefore whatsoever, whether to the employee or any other person.
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided by this chapter.
Section 287.150, however, allows common law actions against third party tort-feasors. Section 287.150.1 states, in pertinent part, "Where a third person is liable to the employee for the injury, the employer shall be subrogated to the right of the employee against such third person." Thus, the issue in this case is whether Dr. Poppa is a third person under the WCL.
Appellant James argues that the controlling case on this issue is Schumacher v. Leslie , 232 S.W.2d 913 (Mo.banc 1950). In Schumacher , an employee had a work injury aggravated by the malpractice of the physician furnished by his employer. The issue in that case was whether the employee could maintain a separate action against the physician for malpractice when his initial injury was covered under the then Workers' Compensation Act. The Court in Schumacher noted that the Workers' Compensation Act does not take away an employee's common law right against a third person. Id . at 916. "The Act predicates liability of the employer on the incident of the employment (master and servant) relationship and not on negligence." Id . at 918. A third person, however, is one with whom there is no master and servant relationship under the Act. Id . "Section 3699, supra, recognizes the common law rights against third persons and indicates an intention to preserve rather than abrogate such rights." Id . The Court determined that no employer and employee or master and servant relationship existed between the plaintiff and defendant in that case. Id . "The benefits of the Act accrue to those who share its burdens. Defendant did not share its burdens. He is not entitled to its benefits. Hence, we conclude he was a stranger under the Act, a `third person'." Id .
The language in § 3699 is substantially the same as in § 287.150.
The Court ultimately held in Schumacher that a doctor being sued for malpractice was a "third person" under the WCL, and an employee could maintain a civil action against the doctor for malpractice. Id . at 918. The analysis contained in Schumacher is difficult to follow and has been set out infra in an appendix.
Dr. Poppa, the respondent, argues that Burns , 976 S.W.2d 639 , is on point. In Burns , an employee of a grocery store injured her shoulder. She was evaluated by an employee of Occupational Medicine Associates, Inc., and diagnosed with a shoulder strain. The employee performed physical therapy and work hardening regimens and returned to work. A later examination revealed that the employee had a torn rotator cuff requiring surgery. The employee filed a petition alleging malpractice against Occupational Medicine Associates, Inc., Gallagher Woodsmall, Inc. (Gallagher), which provided case management for her employer, two doctors and several individuals including Lynn Wells-Brownell, an employee of Gallagher, and Barbara Jones, R.N., a contracted agent of Gallagher. Gallagher, Wells-Brownell, and Jones filed motions to dismiss claiming that the trial court lacked subject matter jurisdiction. The trial court sustained the motions and the employee appealed.
This court determined in Burns that "`[a]s relates to the limitations on civil actions for job related injuries covered by worker's compensation laws, such immunity from civil suit is available only to the employer and to the employer's agents acting to discharge some duty owed by the employer.'" Id . at 644 (quoting Biller v. Big John Tree Transplanter Mfg . , 795 S.W.2d 630, 633 (Mo.App. 1990)). "Civil liability for negligence or nonfeasance is allowed when an employer's agent `steps out of his role as an agent acting for the employer' in discharge of such a duty and `assumes a different relationship' with the employee." Id .
This court in Burns held that it was left with the "inescapable conclusion" that the alleged negligent acts listed in the petition were "done in pursuit of discharging the appellant's employer's duty to her to provide her reasonable and proper medical treatment and care for her job-related injury." Id . at 645. As such, the employee did not allege the "something extra" that "would have placed the respondents' alleged negligent acts outside their discharging of the employer's duty to the appellant to provide her with reasonable and proper medical treatment and care for her work-related injury, subjecting them to separate liability." Id . Thus, this court ultimately affirmed the trial court's dismissal of the petition, finding that the respondents were "at all times acting as agents for the appellant's employer in the discharge of its duty to the appellant and, under the WCL, were immune from separate tort liability." Id .
Because this court is constitutionally bound to follow the decisions of the Supreme Court of Missouri, Holt v. Dir. of Revenue , 3 S.W.3d 427, 431 (Mo.App. 1999), and because this court finds the facts of Schumacher are closest to the case at bar, the analysis and result of Schumacher controls here and requires a reversal. Under the Schumacher rationale, the alleged incorrect diagnosis of Dr. Poppa, which aggravated the original compensable injury, is not pre-empted by the WCL because there is no master and servant relationship between Heartland and Dr. Poppa. Therefore, a civil action in negligence will lie. The Supreme Court may wish to refine the language and reasoning in Schumacher , but that opinion directs this court to allow James' case to continue.
Even if this court had found that Burns applied, the case still would have been reversed. In Burns , the petition alleged that Gallagher and its agents and employees, including Barbara Jones and Lynn Wells-Brownell, were negligent. The analysis in Burns focused on agency and the carrying out of the employer's duty to provide reasonable and proper medical treatment for the employee's work-related injury. 976 S.W.2d at 645. Here, however, the petition does not allege that Dr. Poppa was an agent of Heartland Hospital, and there is no evidence provided in the record that answers that particular question. The petition here only alleged that Dr. Poppa's opinion was requested as a second opinion and it was followed. No agency connection between Dr. Poppa and the employer has been established. Based upon these facts, Dr. Poppa is a third person under § 287.150 and, thus, not immune from a civil suit.
Reversed and remanded.
All concur.
Appendix
Schumacher , 232 S.W.2d at 917:
[W]here the original injury is the result of a tort, that the original tort-feasor is liable for the original injury and any malpractice of the tort-feasor's physician in treatment aggravating said injury; that the physician is not liable for the original injury; that the two are joint tort-feasors with respect to the aggravation; and that the two injuries are not so legally connected that the satisfaction of, say, the original injury necessarily bars the suit for malpractice against the physician. In other words, they are to the effect that malpractice on the part of a physician aggravating an original injury is not necessarily such an intervening act as to break the chain of causation between the original injury and the ultimate result, the aggravation being regarded as a probable consequence of the original injury, and that such malpractice is, at the same time, sufficiently independent of the original injury to give rise to a cause of action against the physician tort-feasor. When the malpractice is not an act which flows legitimately as a natural and probable consequence of the original injury, the chain of causation is broken and the malpractice constitutes an independent intervening cause. (Citations omitted).
Id . at 918:
We think the term `third person' in Sec. 3699, supra, has its usual meaning. The Act predicates the liability of the employer on the incident of the employment (master and servant) relationship and not on negligence. A third person is one with whom there is no master and servant relationship under the Act. Plaintiff predicates the liability of defendant for malpractice on the fault of a tortfeasor. We perceive no reason for subrogating an employer to his employee's rights against a tort-feasor involving an original injury and denying that subrogation against a tort-feasor be he physician or other person, aggravating the original injury and adding to the employer's liability through increased compensation for such aggravation under the Act. To hold a third person must be one participating in the original injury is to deprive the employer of his right of subrogation under § 3699 for the increased compensation occasioned by the aggravation of the injury and is not within the letter or the spirit of an Act which casts liability on employers (§ 3691) `irrespective of negligence.' Greater reason exists for allowing an employer subrogation for the compensable aggravation than for an original `accident arising out of and in the course of' the employee's employment, as the employer is more likely to be without personal fault in connection with the aggravation. We find no legislative intent to make a distinction between an original injury and an aggravation thereof. Section 3699, supra, recognizes common law rights against third persons and indicates an intention to preserve rather than abrogate such rights. No employer and employee or master and servant relationship existed between the instant plaintiff and defendant. The benefits of the Act accrue to those who share its burdens. Defendant did not share its burdens. He is not entitled to its benefits. Hence, we conclude he was a stranger under the Act, a `third person.' We speak of a compensable aggravation of an original compensable injury. (Citations omitted).