On certification to the Superior Court, Appellate Division, whose opinion is reported at 187 N.J. Super. 129 (1982).
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. For reversal -- Judge Handler. Handler, J., dissenting.
We affirm for the reasons stated by Judge Fritz in his opinion below. 187 N.J. Super. 129 (App.Div.1982). We note that when the Legislature added a provision for co-employee immunity to the Workers' Compensation Act in 1961, L. 1961, c. 2 (codified at N.J.S.A. 34:15-8), some employers had medical clinics staffed by employee doctors and nurses. If the Legislature had intended to exclude this class of co-employees, it could have expressed that intent. Indeed the Legislature made a comprehensive review of the Act in 1979, L. 1979, c. 283, without modifying the co-employee immunity provision despite the pronouncement in Bergen v. Miller, 104 N.J. Super. 350 (App.Div.), certif. denied, 53 N.J. 582 (1969), of the principle enunciated in this case. The employee's recovery under the Act includes, of course, the consequences of malpractice, the injuries being deemed to arise out of and in the course of employment. Flanagan v. Charles E. Green & Son, 122 N.J.L. 424 (E. & A. 1939).
By affirming the judgment in this case on the reasoning of the opinion below, this Court endorses a very literal and strict interpretation of the coemployee immunity provision of the workers' compensation statute, N.J.S.A. 34:15-8,*fn1 and thereby denies an employee the right to maintain a cause of action for
medical malpractice against a physician who happens to be employed by the same employer and whose professional activities and responsibilities are wholly unrelated to those of the injured employee. Because I do not believe that the coemployee immunity statute should be understood to bar appellant from maintaining a cause of action for medical malpractice against such a physician, I dissent.
Appellant Alberta Boyle was employed as a Food Service Worker at Camden County's Psychiatric Hospital in Lakeland. On May 12, 1980 she slipped and fell in the dining room of the facility and sustained injuries to her left side. Immediately after her fall, appellant was taken to the Camden County Health Services Center and treated in the medical clinic ("the dispensary") by respondent Charles Breme. Breme, a physician licensed to practice medicine in New Jersey, was employed by Camden County as the Director of Emergency Medical Services of the Camden County Health Services Center and was charged with running the dispensary at the Lakeland Complex.*fn2
After the accident appellant filed a claim for workers' compensation benefits against Camden County. She also commenced an action against defendant for injuries caused by respondent's medical malpractice. The trial court granted respondent's motion for summary judgment, ruling that the coemployee immunity provision of N.J.S.A. 34:15-8 barred the claim because both parties worked for the same employer. Relying on Bergen v. Miller, 104 N.J. Super. 350 (App.Div.), certif. den., 53 N.J. 582 (1969), the Appellate Division affirmed. Boyle v. Breme, 187 N.J. Super. 129 (App.Div.1982). Although acknowledging sound policy arguments for finding an exception to N.J.S.A. 34:15-8 where a claim of medical malpractice is made,
the Appellate Division refused to "threaten the integrity of [the workers' compensation] scheme by presuming an exception in the case of a coemployee who happens to be a doctor." Id. at 132. It was "convinced that any adjustment . . . should be left to the Legislature." Id. at 133.
The critical question in this case is whether the coemployee immunity provision of N.J.S.A. 34:15-8 of the Workers Compensation Act is to be understood as immunizing a company doctor from liability for negligent acts performed in the course of his professional, medical treatment of a coemployee.
In 1961 the Legislature added a provision for coemployee immunity to the Workers' Compensation Act, L. 1961, c. 2, which "expressly . . . preclude[d] a right of recovery on account of a compensable injury or death at common law or otherwise against a fellow employee except in cases of intentional wrong." Miller v. Muscarelle, 67 N.J. Super. 305, 321 (App.Div.1961). It thus abolished "cause[s] of action in tort against a fellow employee . . . [that] ha[d] frequently resulted in burdening the employer indirectly with common law damages superimposed upon his workmen's compensation liability by reason of either a legal, moral or practical obligation to indemnify the sued . . . employee." Ibid. This amendment brought coemployee relationships into concert with a general purpose underlying workers compensation, that is, to afford expeditious and certain redress to injured ...