Before Judges D'Annunzio, Cuff and Collester
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
The opinion of the court was delivered by
The issue is whether a production employee may sue a physician, who is a fellow employee, for the physician's alleged failure to diagnose a malignant tumor during treatment for a compensable injury.
Plaintiff, Donald Hawksby, was employed by the New York Times Company on December 13, 1993. On that date, while engaged in his duties in the New York Times pressroom, he fell off a ladder injuring his left thigh and knee. Hawksby was treated, at least in part, by defendant, Dr. Joseph DePietro, the Times' medical director and a full-time employee of the New York Times. Hawksby alleges that DePietro treated him for approximately one year, but without improvement.
In late 1994, Hawksby was examined at Memorial Sloan-Kettering Cancer Center in New York City. The ultimate diagnosis was a "large high grade sarcoma of his left calf." The tumor "measures at least 20 cm and encompasses a good one-third of the circumference of the calf." Hawksby received chemotherapy. The record does not clearly establish whether the tumor was removed surgically. We are unaware of the prognosis.
In January 1995, Hawksby filed a workers' compensation petition against the New York Times. In November 1995, Hawksby commenced this medical malpractice action against Dr. DePietro and other medical professionals. In October 1996, the trial court granted Dr. DePietro's motion for summary judgment on the ground that Dr. DePietro, being a fellow employee, was immune from a tort action under N.J.S.A. 34:15-8. The trial court denied plaintiff's request that the matter be placed on the inactive list pending the workers' compensation matter. The summary judgment order was interlocutory because the medical malpractice action continued against other medical professionals. This court denied plaintiff's motion for leave to file an appeal from the summary judgment.
The workers' compensation claim was disposed of on May 22, 1997 by entry of an order approving settlement. See N.J.S.A. 34:15-20. The order awarded Hawksby "10% of the left leg for residuals of a hamstring pull." It also stated that "[t]he spindle cell sarcoma is not causally related to the petitioner's employment or the accident of 12/13/93."
On July 23, 1997, plaintiff moved in the medical malpractice action, under R. 4:50-1, to set aside the summary judgment. The court denied this motion on October 24, 1997. That order was also interlocutory because the medical malpractice case had not been disposed of as to all parties. However, a stipulation of dismissal with regard to defendant, William H. Ross, M.D., the last party in the case, was filed on November 6, 1997. Plaintiff filed his timely notice of appeal on December 3, 1997, appealing from the October 24, 1997 order denying the motion to vacate the summary judgment entered on September 18, 1996.
An employee may not maintain an action for professional negligence against a fellow-employee physician arising out of the treatment of a compensable injury. The employee's sole remedy is under the Workers' Compensation Act. Boyle v. Breme, 93 N.J. 569 (1983); Bergen v. Miller, 104 N.J. Super. 350 (App. Div.), certif. denied, 53 N.J. 582 (1969). This principle is codified in N.J.S.A. 34:15-8, which provides that "[i]f an injury . . . is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury . . . for any act or omission occurring while such person was in the same employ as the person injured . . . except for intentional wrong." This provision was added to the workers' compensation statute in 1961. L. 1961, c. 2, § 1. Prior to the amendment, however, an injured employee could maintain a tort action against a fellow employee whose alleged negligence was a proximate cause of the work-related injury. Stacy v. Greenberg, 9 N.J. 390, 397 (1952); Churchill v. Stephens, 91 N.J.L. 195 (E. & A. 1917). But see Burns v. Vilardo, 26 N.J. Misc. 277, 280 (Sup. Ct. 1948) (holding that an injured worker could not maintain a malpractice action against a plant physician for aggravating the industrial injury; the employer was responsible "in compensation for the whole injury" including the alleged aggravation of it and that the "remedy provided by the Compensation Act is exclusive.").
Boyle and Bergen, however, involved allegations of professional negligence which aggravated the compensable injury being treated. The present case is different. Plaintiff alleges that Dr. DePietro failed to diagnose a cancerous tumor not related to the industrial injury and otherwise not compensable. We are persuaded, nevertheless, that if Dr. DePietro, in failing to diagnose the cancerous tumor during his treatment of Hawksby's compensable injury, deviated from a standard of care, any additional harm as a consequence of that deviation constitutes a risk incidental to Hawksby's employment and would be compensable under the workers' compensation statute. Cf. Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988) (store employee injured while walking in mall parking lot not owned by employer); Thornton v. Chamberlain Mfg. Corp., 62 N.J. 235, 242 (1973) (injuries sustained by petitioner as a result of assault by former co-employee, occurring nine days after petitioner terminated his employment, were compensable because they "were caused in every realistic sense by petitioner's exposure at work."); Howard v. Harwood's Restaurant Co., 25 N.J. 72 (1957) (assault of employee by a co-employee at the employment site is a risk associated with the employment and is compensable); Prettyman v. State, 298 N.J. Super. 580 (App. Div. 1997) (under "but for" test, petitioner's depression, high blood pressure and post traumatic stress disorder as a result of hostile aggressive interrogation by State Police detectives were compensable because the event arose out of work-connected duties).
Unlike the case where a physician aggravates the injury being treated, however, here the compensability of DePietro's alleged diagnostic failure would depend on concepts of fault, i.e., if Dr. DePietro did not deviate from a standard of care, then neither he nor the New York Times is responsible, in tort or under the compensation statute, for the progression of the cancer because Hawksby would not have suffered harm from ...