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Hawksby v

July 25, 2000


The opinion of the court was delivered by: Coleman, J.

Argued November 29, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 319 N.J. Super. 89 (1999).

This case revisits the issue of whether there should be tort liability for co-employee physicians. The question raised is whether a doctor who is also an employee of an injured worker's employer may be sued in the Law Division for medical malpractice for allegedly injuring that worker while providing authorized medical treatment for a compensable accident. The Law Division held that the action was precluded based upon immunity under the New Jersey Workers' Compensation Act (Act), N.J.S.A. 34:15-8, and that the exclusive remedy was to pursue the claim in the Division of Workers' Compensation (Division). The Appellate Division affirmed in a published opinion. 319 N.J. Super. 89, 102 (1999).

We hold that whenever a worker is treated for a work-connected condition by an authorized doctor or nurse, who is also an employee of the injured worker's employer-owned and -operated health care facility, the injured worker's exclusive remedy for alleged malpractice is to pursue the claim in the Division.


The relevant facts are not disputed. Plaintiff Donald Hawksby (plaintiff) worked for some time prior to the date of his accident as a pressman for The New York Times Co. (The Times) at its Edison, New Jersey plant. While performing his duties on December 13, 1993, plaintiff fell from a ladder causing injuries to his left elbow, left knee, and left leg extending from the back of the knee into the calf and thigh. The Times operates its own healthcare facility that provided medical care to plaintiff. After initial minor treatment on the day of the accident by The Times nurse and an emergency room doctor, plaintiff consulted defendant Dr. Joseph DePietro on December 23, 1993. Dr. DePietro is the full-time director of The Times on-site clinic that treated plaintiff for approximately one year. All of the treatment rendered by Dr. DePietro was in his capacity as an employee of the clinic and The Times.

Dr. DePietro's treating diagnosis was probable slight strain of the hamstring muscle for which Advil, stretching exercises, and application of heat were prescribed. When the treatment plan did not resolve plaintiff's medical problems, which included persistent severe pain, plaintiff returned to the clinic on October 14, 1994, complaining of pain in the posterior left thigh. An X-ray and a magnetic resonance imaging test (MRI) were taken on October 26, 1994, and plaintiff was referred to an orthopedic oncologist because the MRI showed a solid lesion in plaintiff's left thigh. Plaintiff was examined by Dr. John H. Healey, an orthopedic oncologist, at Memorial Sloan Kettering Cancer Center on November 15, 1994. He performed an open biopsy of a mass on plaintiff's left calf on November 16, 1994. A large grade sarcoma of the left calf was diagnosed. Plaintiff received chemotherapy and radiation therapy from Sloan Kettering until at least April 1995. The record does not reveal plaintiff's medical condition and treatment since that time.

On January 25, 1995, plaintiff filed a verified petition with the Division against The Times for the December 3, 1993 accident. While that claim was still pending in the Division, plaintiff filed the present action in the Law Division on November 14, 1995, alleging medical malpractice against Dr. DePietro and other medical professionals. The Appellate Division has accurately summarized most of the remaining relevant procedural history:

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. [Hawksby, supra, 319 N.J. Super. at 91].

With few exceptions, we agree with the Appellate Division's legal analysis that led it to hold that "Hawksby may not maintain a tort action against Dr. DePietro based on his failure to diagnose the cancer during his treatment of Hawksby's compensable injury." Id. at 102. The Appellate Division examined cases from around the country and concluded that "[t]he majority of the courts which have addressed this issue have concluded, as New Jersey has, that an injured employee may not maintain a malpractice action against a co-employee physician for the negligent aggravation of his or her existing injury." Id. at 93-94.

Hawksby filed his petition for certification on March 26, 1999. While that petition was pending, on April 4, 1999, he filed an application for review or modification, pursuant to N.J.S.A. 34:15-27, of his ten percent disability award for the left leg injury. That claim is still pending in the Division. We granted certification on May 26, 1999. 160 N.J. 479 (1999).


Plaintiff argues that his malpractice claim should not have been dismissed because the cancer in his leg was non-work related, and was instead the result of a disease process that was unrelated to the workplace. He also contends that Dr. DePietro's failure to timely diagnose the tumor was independent of his employment status as the physician authorized by The Times to treat employees for work-related conditions. He argues further, that he has been placed in the untenable position of having The Times contend in the Division that the cancer is not compensable, and having Dr. DePietro contend in the Law Division that immunity under N.J.S.A. 34:15-8 requires dismissal of the tort action.

Dr. DePietro argues that plaintiff's predicament, of having the claim of alleged failure to make an early cancer diagnosis found to be non-compensable in the Division based on a stipulation, not the result of a litigated trial, and the dismissal of the tort claim in the Law Division based on the fellow-employee immunity under N.J.S.A. 34:15-8, is simply the result of plaintiff's litigation strategy. In other words, Dr. DePietro contends that plaintiff settled his case in the Division in an effort to obtain a more lucrative award or settlement in the tort action. He continues to maintain that the exclusive forum was the Division, where plaintiff should have proceeded on the theory that Dr. DePietro had aggravated a pre-existing cancer and that a tort action is barred by the exclusive remedy rule, N.J.S.A. 34:15-8.


The procedural posture in this case is strikingly similar to that involved in a case we decided two terms ago. As we observed there:

"This is a workers' compensation case in which the parties have taken reverse factual and legal positions. The injured worker . . . is denying that an accident arose out of and in the course of employment . . . in order to escape the exclusive remedy rule of the New Jersey Workers' Compensation Act . . . while the employer is admitting the compensability of that accident." Kristiansen v. Morgan, 153 N.J. 298, 301-02 (1998). Here, plaintiff is ...

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