Payne v. Galen Hospital Corp.

4 S.W.3d 312, 1999 Tex. App. LEXIS 6367, 1999 WL 701378

• Court: Court of Appeals of Texas
• Decided: August 26, 1999
• Docket: 01-97-00087-CV
• Status: Published

Opinions

MARGARET GARNER MIRABAL, Justice,

dissenting on motion for rehearing.

I dissent.

Janis Payne¹ filed suit against Galen Hospital, Dr. Edward Green, the drug manufacturer, and the drug marketer. The hospital’s workers’ compensation insurance carrier intervened in the suit for the recovery of amounts paid to Payne under the workers’ compensation policy. The trial court granted the hospital’s motion for summary judgment, severed that part of the case from the remainder, and dismissed the workers’ compensation carrier’s intervention in connection with the claims against the hospital.

No one contests that if Payne would have had the prescriptions filled by another pharmacy, Payne could pursue her common-law negligence claims against that pharmacy, even though the workers’ compensation insurance would have covered her costs; the hospital’s workers’ compensation carrier would have subrogation rights in connection with her recovery. Tex. Lab.Code Ann. §§ 417.001-.002 (Vernon 1996). Therefore, the key issue in this appeal is whether the mere fact that the pharmacy is owned by Payne’s employer bars Payne’s claim.²

The applicable Workers’ Compensation Act (the Act) provision³ exempts employers from common-law liability based on negligence or gross negligence; it provides the exclusive remedy for injuries employees sustain in the course of their employment. Dickson v. Silva, 880 S.W.2d 785, 788 (Tex.App.—Houston [1st Dist.] 1993, writ denied). The exclusivity provision of the Act prevents only those actions founded directly on the initial personal injury sustained by the worker in the course and scope of his or her employment. Seale v. American Motorist Ins. Co., 798 S.W.2d 382, 392 (Tex.App.—Beaumont 1990, writ denied). If Payne’s injuries from taking Toradol were not sustained in the course of her employment, then the Act does not disturb her common-law remedies. Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 693 (Tex.App.—Houston [1st Dist.] 1993, writ denied).

Both parties agree that Payne’s first injury, her back injury, was in the course and scope of her employment. The contested question is whether the second injury, the effects from the Toradol, was sustained in the course of her employment, as defined by the Act. Whether an employee’s injuries were sustained in the course of her employment must first be determined before it can be held that the exclusivity provision of the Act is applicable. Villanueva, 866 S.W.2d at 693.

As a general rule, an injury sustained in the course of employment must be of a kind or character originating in or having to do with the employer’s work, and it must have occurred while the employee was engaged in the furtherance of the employer’s business or affairs. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.1981); Dickson, 880 S.W.2d at 787. The uneontroverted evidence shows that Payne’s back was injured on the job. Payne sought and received treatment from a physician not associated with her employer. The physician prescribed Toradol for her back injury. Payne picked up the Toradol from the hospital pharmacy either after work or on her days off. Payne could have filled her prescription at any pharmacy. The original back injury healed; however, Payne suffered other injuries in the form of severe reactions to the Toradol. Such injuries were not sustained while Payne was engaged in the furtherance of the hospital’s business or affairs. The acts of prescribing and filling the prescription refills were separable from the initial back strain and produced an independent injury. Such injuries do not qualify as injuries “sustained in the course and scope of employment,” and therefore the present action is not barred by the exclusivity provision of the Workers’ Compensation Act. See Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983) (if the employer’s tortious act is separable from the original claim for on-the-job injury, and if the tortious act produces an independent injury, there is no estoppel preventing the employee from suing the employer even if the employee had received worker’s compensation benefits); Nayef v. Arabian Am. Oil Co., 895 S.W.2d 825, 827 (Tex.App.—Corpus Christi 1995, no writ) (an employee may have a workers’ compensation claim against the employer and also a common-law claim for a tort if the employer’s tort is separable from the initial compensation claim and produces an independent injury).⁴

I analogize the present ease with the following fact scenario: a hospital employee sustains an on-the-job injury to her right arm, and the hospital-employed doctor amputates the left arm by mistake. Does the exclusivity provision of the Workers’ Compensation Act preclude a suit for negligence and gross negligence against the hospital? The hospital argues that such a suit would be precluded, and the majority agrees. I disagree. The amputation of the wrong arm in such circumstances, though compensable under the Act, would not be an injury sustained in the course and scope of employment — it would be an independent injury caused by a tortious act separable from the on-the-job-injury.

The majority concludes that because the injuries sustained by Payne as a result of taking Toradol are “compensable” under the Act, Payne’s lawsuit is barred by the exclusivity provision of the Act. Respectfully, I believe the majority has wrongly adopted a simplistic approach, making compensability and exclusivity coextensive. “Compensability” is uncontested in this case; however, “exclusivity of remedy” is a different issue not resolved by the mere fact that the injury is “compensable” under the Act. Massey makes it clear that if the employer’s intentional tortious act is separable from the on-the-job injury, and if the tortious act produces an independent injury, there is no bar to a lawsuit just because worker’s compensation benefits have been paid. Massey, 652 S.W.2d at 933. Likewise, in the present case, the alleged negligence of the pharmacy was separable from the on-the-job injury of the back sprain, and it produced an independent injury; thus, the present lawsuit is not barred.

I would sustain plaintiffs’ sole point of error, reverse the judgment, and remand the case to the trial court.

Justice O’CONNOR joins this opinion and dissents to the denial of the motion for rehearing en banc.

1 . Payne filed suit individually, and as next friend of her children.

2 . It would follow that if Payne does have a right to sue the hospital-owned pharmacy in the present case and she prevails on her negligence claims, the hospital’s workers’ compensation carrier will likewise have subrogation rights in connection with her recovery.

3 . Act of December 13, 1989, 71st Leg., 2d C.S., ch. 1, § 4.01, 1989 Tex. Gen. Laws 1, 32, (former Tex.Rev.Civ. Stat. Ann. art. 8303.4.01, since repealed and codified by Tex. Lab.Code Ann. § 408.001 (Vernon 1996)) (the Act).

4 . I note that the cases relied on by the hospital are distinguishable. In Darensburg v. Tobey, 887 S.W.2d 84 (Tex.App.—Dallas 1994, writ denied), the injury sustained in the course and scope of employment was a fractured wrist; the fact that it was initially diagnosed as merely a sprained wrist did not change the fact that the injury actually sustained at work was the fracture. Id. at 86. Likewise, in Godinet v. Thomas, 824 S.W.2d (Tex.App.— ouston [14th Dist.] 1991, writ denied), the on-the-job injury was the contraction of Hepatitis B from a needle puncture; the fact that the plaintiff was initially diagnosed as having Hepatitis A did not change the fact that the' injury actually sustained at work was the contraction of Hepatitis B. Id. at 633. Further, in both Darensburg and Godinet, the respective plaintiffs and treating physicians were employed by the same employers; here, the treating physician who prescribed Toradol is an independent doctor, not employed by the hospital.