Petition for Writ of Certiorari — Morris v. Providence Hospital
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| Office - Supreme Court, V.9.
84-219 FILED
AUG 7 1984
No. -
R LL. STEVAS
CLERK
IN THE —
Supreme Court of the United States
OCTOBER TERM, 1984
CHARLES P. MORRIS, ef ai.,
Petitioners,
PROVIDENCE HOSPITAL,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Joseph H. Koonz, Jr.
Carolyn McKenney
Roger C. Johnson
Mark J. Brice
(Counsel of Record)
KOONZ, McKENNEY &
JOHNSON, P.C.
2020 K Street, N.W.
Suite 846
Washington, D.C. 20006
(202) 659-5500
Attorneys for Petitioners
Casillas Press Inc. © 1717 K Street NW Washington DC « 223-1220
(i)
QUESTION PRESENTED
Whether the exclusive remedy provision of the Long-
shoremen’s and Harbor Workers’ Compensation Act bars
an employee from bringing a tort action against his em-
ployer, acting in a separate independent capacity, for neg-
ligent medical treatment.
(ii)
PARTIES TO THE PROCEEDINGS
The parties to the proceedings below in the United
States Court of Appeals for the District of Columbia Cir-
cuit were petitioners, Charles P. Morris and Henrietta
Morris, and the respondent, Provdence Hospital.
QUESTION PRESENTED
PARTIES TO THE PROCEEDINGS
TABLE OF CONTENTS
i.
II.
CONCLUSION
(iii)
TABLE OF CONTENTS
The Lower Court’s Memorandum Opinion Sharply
Conflicts with the Holdings of this Court Which
Recognize the Dual Capacity Doctrine as Applied
to Section 905 of the Longshoremen’s and Harbor’s
Workers’ Compensation Act ...................0000-
Since the Supreme Court Held the Employer-
Shipowner in Reed Liable for a Single Injury the
Dual Capacity Doctrine Must Naturally Apply to
en tac ekeebewcncrerece
The Lower Court’s Memorandum Opinion Directly
Conflicts with the Clear Majority of States Deciding
this Issue Which have Followed the Supreme Court’s
Holding in Reed Allowing the Employer, in its
Second Capacity, to be Sued in Tort ..................
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(iv)
TABLE OF AUTHORITIES
Cases: Page
Cudahy Packing Co. v. Parramone,
ee ee ns eee wsid deen esi eeee A 10
D’Angona v. County of Los Angeles,
ee oa tibecbkawewsesiessvacew ten 9,11
German v. Chemray, Inc., et al.,
ie a ns wad baa aaeeeee ue waa Ms 9
Guy v. Arthur H. Thomas Co., et al.,
Fe I RI ie gn ob p04 baddest dees ucvlesiidss 4
Jackson v. Lykes Brothers Steamship Co., Inc.,
RR AE ENR ee a 6,7,8,9
Jones & Laughlin Steel Corp. v. Pfeifer,
calleiieg ONG cai ED 5 civ och ssccaveascs 6,7,8,9
Lindsay v. George Washington University,
279 F.2d 819(U.S. App. D.C. 1960) .............. 4, 5,7, 10, 12
McAlister v. Methodist Hospital of Memphis,
a so ig Cad bids be kd nds dsicevaduns 10
Milashouskas, et al. v. Mercy Hospital, et al.,
a A 9
Panagos v. North Detroit Central Hospital,
Re 9
Pyles v. Bridges, et al.,
poe aes Pare, meee. CR. AD. TOTS) occ ccc ecccccscesccs 9
Reed v. The Yaka,
od i ce vee heute b ehe baawaa 5, 6, 7, 8,9
Tatrai v. Presbyterian University Hospital,
See PE EE cog x bch a hed cases esexcadbanken 9, 12
(v)
Wright v. United States,
pig h Bh a a rere er ae re 8
Statutes:
I. Acts of Congress
Longshoremen’s and Harbor Workers’ Compensa-
tion Act, 44 Stat. 1427, 33 U.S.C. Section 905(a),
Adopted by the District of Columbia Act of May 17,
1928, 45 Stat. 600, D.C. Code, 1973 Section 36-501 ......... 2
II. U.S. Code
SETS I hk vad cecccaens séandesniesseaas 2
Other Authorities:
2A Larson, Workmen’s Compensation Law
OER Fae COI. hee 0 oa ck noo ccne bente-oas ep wenes 8
IN THE
Supreme Court of the United States
OCTOBER TERM, 1984
No.
CHARLES P. MORRIS, et ai.,
Petitioners,
PROVIDENCE HOSPITAL,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners, Charles P. Morris and Henrietta Morris,
respectfully pray that a Writ of Certiorari issue to review
the judgment and opinion of the United States Court of
Appeals for the District of Columbia Circuit issued April
13, 1984.
OPINIONS BELOW
The memorandum opinion of the District of Columbia
Court of Appeals dated January 31, 1983, is an unre-
ported opinion (Appendix, p. 10a).
2
The memorandum opinion of the Honorable Louis
Oberdorfer, Judge of the United States District Court for
the District of Columbia, dated June 22, 1983, is an un-
reported opinion (Appendix, p. 3a).
The memorandum opinion of the United States Court
of Appeals for the District of Columbia Circuit dated
April 13, 1984, is an unreported opinion (Appendix, p.
la).
JURISDICTIONAL STATEMENT
The judgment of the United States Court of Appeals for
the District of Columbia Circuit was entered on April 13,
1984. Petitioners Charles P. Morris and Henrietta Morris’
petition for rehearing en banc was denied on May 9, 1984.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATUTE INVOLVED
Section 5(a) of the Longshoremen’s and Harbor
Workers’ Compensation Act, 44 Stat. 1427, 33 U.S.C.
Section 905(a) (1973) made applicable to the District of
Columbia by D.C. Code Section 36-501 (1973).
EXCLUSIVENESS OF REMEDY AND
THIRD-PARTY LIABILITY
SEC. 5(a) The liability of an employer pre-
scribed in section 4 shall be exclusive and in place
of all other liability of such employer to the em-
ployee, his legal representative, husband or wife,
parents, dependents, next of kin, and anyone
otherwise entitled to recover damages from such
employer at law or in admiralty on account of
such injury or death, except that if an employer
3
fails to secure payment of compensation as re-
quired by this Act, an injured employee, or his
legal representative in case death results from the
injury, may elect to claim compensation under
the Act, or to maintain an action at law or in ad-
miralty for damages on account of such injury or
death. In such action the defendant may not
plead as a defense that the injury was caused by
the negligence of a fellow servant, or that the
employee assumed the risk of his employment, or
that the injury was due to the contributory neg-
ligence of the employee.
STATEMENT OF THE CASE
The petitioner, Charles Morris, was employed as a
chauffeur by the respondent, Providence Hospital (Pro-
vidence). In April of 1980, Mr. Morris sustained a mild
back strain while at work. During the two-and-one half
weeks that followed, Mr. Morris received medical treat-
ment for this minor back strain from Providence. Mr.
Morris was treated as an outpatient at Providence and was
billed for the medical services which he received. These
bills were ultimately paid by the employer’s insurance car-
rier.
During the course of Mr. Morris’ treatment, traction
was applied to the strain to alleviate pain. Mr. Morris’
pain did not subside but became more severe and incapaci-
tating. By April 18, 1980, Mr. Morris i.ad lost the ability
to walk. Immediate surgery was performed by Providence,
which failed to correct his problem. Mr. Morris is now
permanently paralyzed from the waist down with complete
loss of bowel and bladder control.
The complaint in this case was filed on June 25, 1981, in
the Superior Court for the District of Columbia. The
4
plaintiffs, Charles and Henrietta Morris, sued the em-
ployer, Providence, for medical malpractice. Morris v.
Providence Hospital, C.A. 9449-81 (June 25, 1981). Plain-
tiffs’ complaint was dismissed on defendant’s motion by
the Honorable Sylvia Bacon on January 5, 1982. Judge
Bacon relied on Lindsay v. George Washington Universi-
ty, 108 U.S. App. D.C. 44, 279 F.2d 819 (1960). That case
held that the exclusive remedy provision cf the Workers’
Compensation Act barred a hospital employee’s malprac-
tice action against his employer. A panel of ihe District of
Columbia Court of Appeals affirmed the dismissal. The
panel suggested that plaintiffs seek a rehearing en banc so
that the court could “address more fully” the contention
that Lindsay should be re-examined. Morris v. Providence
Hospital, C.A. 82-182 (D.C. App., Jan. 31, 1983 (Appen-
dix, p. 12a). The D.C. Court of Appeals, sitting en banc,
denied rehearing on the ground that “the issue presented is
one of interpretation of a federal statute precluding a
question of local law construction.” Morris v. Providence
Hospital, C.A. 82-182 (D.C. App., March 16, 1983) (Ap-
pendix, p. 9a). Petition for certiorari was not filed.
This malpractice complaint against Providence was then
filed in the United States District Court for the District of
Columbia. The Honorable Louis Oberdorfer granted de-
fendant’s motion for summary judgment and dismissed
the action based on Lindsay. Judge Oberdorfer’s memo-
randum opinion stated first that the reconsideration of
Lindsay should be by the federal Court of Appeals that
decided Lindsay, and second that the case did involve a
federal question. Morris v. Providence Hospital, C.A.
83-1314(D.D.C., June 22, 1983) (Appendix, p. 5a). Appeal
was taken to the United States Court of Appeals for the
District of Columbia. A panel of the Court of Appeals af-
firmed the District Court’s ruling, stating that reconsidera-
5
tion of Lindsay could be achieved only by the court sitting
en banc. Morris, et al. v. Providence Hospital, C.A.
83-01314 (Cir. D.C., Apr. 13, 1984). Morris’ Petition for
Rehearing and suggestion for Rehearing En Banc were de-
nied. Morris, et al. v. Providence Hospital (Cir. D.C..,
May 9, 1984) (Appendix, pp. 14a, 15a). In essence, peti-
tioner has made every conceivable effort to have the
anachronistic Lindsay decision reviewed without success,
even though it has had and will continue to have a devas-
tating effect on the quality of medical care provided to em-
ployees of health care providers.
REASONS FOR GRANTING THE PETITION
Petitioner respectfully submits that the issue passed
upon by the courts below presents an important question
of federal law which has not been, but should be, settled
by this Court. Accordingly, the reasons and aiguments for
the allowance of the writ are fully set forth below.
I. THE LOWER COURT’S MEMORANDUM OPINION
SHARPLY CONFLICTS WITH THE HOLDINGS OF
THIS COURT WHICH RECOGNIZE THE DUAL CAPA-
CITY DOCTRINE AS APPLIED TO SECTION 905 OF
THE LONGSHOREMEN’S AND HARBOR WORKERS’
COMPENSATION ACT.
The lower court’s memorandum opinion relied solely on
Lindsay v. George Washington University, 108 U.S. App.
D.C. 4, 279 F.2d 819 (1960). Lindsay held that the ex-
clusive remedy provision of the Workers’ Compensation
Act (the Act) barred a hospital employee’s malpractice ac-
tion against his employer. The Supreme Court has since
overruled the basic premise of the Lindsay holding by its
application of the dual capacity doctrine in Reed v. The
Yaka, 373 U.S. 410 (1963).
6
In Reed, this court struck down the lower court’s super-
ficial interpretation and application of Section 905(a) to a
longshoreman, employed by the bareboat charterer or
owner pro hac vice, injured while loading a ship. By allow-
ing Reed to bring an action against the owner pro hac
vice/employer, this Court corrected the unreasonable, un-
just ard inequitable result which occurs when the exclusive
remedy provision is applied in blanket form. This Court
further distinguished form from substance by stating that
Reed would have been “completely denied the traditional
and basic protection of the warranty of seaworthiness”
simply because the effective owner of the ship was also his
employer. 373 U.S. at 413, emphasis ours. The Court con-
cluded:
. . . [Reed’s] . . . need for protection from
unseaworthiness was neither more nor less than
that of a longshoreman working for a stevedor-
ing company. As we said in a slightly different
factual context, ‘All were subjected to the same
danger. All were entitled to like treatment under
the law.’ [citations omitted]
373 U.S. at 415.
This Court has reinforced the application of the dual
capacity doctrine by relying on Reed in more recent deci-
sions. Jones & Laughlin Steel Corp. v. Pfeifer, ___. U.S.
____, 103 S.Ct. 2541 (1983); Jackson v. Lykes Brothers
Steamship Co., Inc., 386 U.S. 731 (1967). In Jones, a
plaintiff who had a work-related injury was allowed to
bring an action in negligence against the employer/ship-
owner, notwithstanding the receipt of workers’ compensa-
tion. ___ U.S. at ___, 103 S.Ct. at 2548.
While this Court did not refer specifically to the dual
capacity doctrine, the Court’s reasoning as set forth above
indicates that the employer can assume two roles; first,
that of employer; and second that of shipowner. In Reed,
Jackson and Jones, the employer could not escape liability
in his second, shipowner, capacity despite the Act’s exclu-
sivity provision. Since Reed, Jackson and Jones have over-
ruled Lindsay, the lower court erred by relying on Lindsay
to dismiss petitioner’s action.
II. SINCE THE SUPREME COURT HELD THE EMPLOYER-
SHIPOWNER IN REED LIABLE FOR A SINGLE INJURY
THE DUAL CAPACITY DOCTRINE MUST NATURAL-
LY APPLY TO PETITIONER’S DOUBLE INJURY.
The dual capacity doctrine as applied in Reed, Jackson
and Jones is naturally applied to petitioner’s double injury
case. In Reed, Jackson and Jones, the employee suffered
from a single compensable injury. In each case, the em-
ployee received workers’ compensation and in addition,
was allowed to sue in tort for negligence damages. Here,
petitioner suffered the first compensable injury while at
work. The paralysis, petitioner’s second injury, is also
compensable under the Act as a consequential aggravation
of his original compensable injury. At this point, the
employee/employer relationship ended and the patient/
hospital relationship began. The second injury occurred
when Providence provided negligent medical treatment to
Mr. Morris in its capacity as a hospital, not an employer.
Petitioner, like the employee in Reed, Jackson and Jones,
has a separate cause of action against Providence Hospi-
tal. Providence, in its capacity as a hospital, was not
responsible for the strain, but for the devastating results of
treatment rendered to Mr. Morris as a member of the gen-
eral public.
Since the relationship between Mr. Morris’ paralysis and
the hospital treatment is clear, the application of Reed is
only natural. Mr. Morris was an employee, injured while
under the employ of Providence. Mr. Morris, the patient,
was permanently paralyzed by Providence, the hospital.
This malpractice action was filed against Providence in its
second capacity as a hospital, which provides medical
treatment to the general public. In this separate and
distinct capacity, Providence has a duty to provide the
general public medical services free from negligence. A
gross parody would exist if Providence were allowed to
escape liability, on the mere fortuity that the patient who
alleged malpractice was an employee, when the same pa-
tient would have a cause of action if treated by a hospital
not his employer.
The only Court of Appeals case which has addressed
this issue since the holdings of Reed, Jackson and Jones,
has followed the Supreme Court and ruled against the
employer/hospital. Wright v. United States, 717 F.2d 254
(6th Cir., 1983). The Wright court held that an employee
of a hospital could have sued her employer under the “dual
capacity doctrine” as a provider of medical treatment. 717
F.2d at 259.
The court espoused the following test for application of
the dual capacity doctrine:
An employer may become a third person, vulner-
able to tort suit by an employee, if — and only if
— he possesses a second persona so completely
independent from and unrelated to his status as
employer that by established standards the law
recognizes it as a separate legal person.
Wright, at 259, citing with approval 2A _ Larson,
Workmen’s Compensation Law 14-229, Section 72.81
(1982).
Simply stated, the dual capacity doctrine is the progeny
of this Court’s rationale in deciding Reed, Jackson and
Jones. In these cases, this Court drew a practical line be-
tween the longshoreman/employer, longshoreman/ship-
owner relationship. The result of the line was one pre-
dicated on common sense, “that is the employer in his sec-
ond capacity was charged with the traditional, absolute
and non-delegable obligation of seaworthiness which it
should not be permited to avoid.” Reed at 415. A similar
line should be drawn between the employee/employer, pa-
tient/hospital relationship, a result which is in total har-
mony with the holdings of Reed, Jackson and Jones.
Ill. THE LOWER COURT’S MEMORANDUM OPINION DI-
RECTLY CONFLICTS WITH THE CLEAR MAJORITY
OF STATES DECIDING THIS ISSUE WHICH HAVE
FOLLOWED THE SUPREME COURT’S HOLDING IN
REED ALLOWING THE EMPLOYER, IN ITS SECOND
CAPACITY, TO BE SUED IN TORT.
An opinion on this issue by the Supreme Court will have
nationwide impact on the interpretation of the exclusivity
clause in each state’s workers’ compensation laws. The
modern trend is exemplified by the majority of states
which have adopted Reed and the dual capacity doctrine
as applied to an employer who possesses a second persona.
Seven states, including California, New York, Pennsyl-
vania and Ohio, have held the employer/hospital liable to
an employee for malpractice or negligence. See, e.z.,
Tatrai v. Presbyterian University Hospital, 497 Pa. 247,
439 A.2d 1162 (1982); D’Angona v. County of Los Ange-
les, 166 Cal. Rptr. 177, 613 P.2d 238 (1980); Guy v. Ar-
thur H. Thomas Co., et al., 55 Ohio St.2d 183, 370
N.E.2d 488 (1978); Milashouskas, et al. v. Mercy Hos-
pital, et al., 64 A.D.2d 866, 408 NYS.2d 808 (1978); Pana-
gos v. North Detroit Central Hospital, 35 Mich. App. 554,
192 N.W.2d 542 (1971); Pyles v. Bridges, et al., 259 So.2d
724 (Fla. Dist. Ct. App. 1972); see German v. Chemray,
Inc., et al., 564 P.2d 636 (Okla. 1977) (Court held em-
10
ployer who selected hospital was responsible with hospital
for malpractice), but see McAlister v. Methodist Hospital
of Memphis, 550 S.W.2d 240 (Tenn. 1977).
The clear weight of authority supports the application
of the dual capacity doctrine, as espoused by this Court,
when an employer possesses a second persona as a health
care provider which is so completely independent from
and unrelated to his status as an employer. The holdings
of Lindsay and McAlister were based on a superficial in-
terpretation of the Act’s exclusivity provision without con-
sideration of the practical effect of that interpretation.
Both cases ignore common sense and legal sense. Aside
from the fact that Lindsay and McAlister are contrary to
the great weight of authority, there are multiple sound
policy arguments for application of the dual capacity doc-
trine.
First, the dual capacity doctrine does not destroy the
theoretical superstructure of workers’ compensation. In-
stead, the symmetry it imposes merely strengthens it.
Workers’ compensation is premised on the idea of
status.Cudahy Packing Co. v. Paramone, 263 U.S. 418
(1923). Workmen are entitled to compensation for injuries
sustained in the performance of their duties. Compensa-
tion is based not upon any act or omission of the em-
ployer, but upon the existence of the employee/employer
relationship. 263 U.S. at 423. The dual capacity doctrine
merely allows the employee to sue his employer where the
employee/employer relationship no longer exists because
the employer has a second persona unrelated to his status
as an employer. The employer, as a hospital, does not par-
ticipate in the mutual compromise of rights that is the
essence of the workers’ compensation scheme and should
not be permitted to rely on the compromise to escape lia-
bility for their non-employer activities.
1]
Second, the workers’ compensation scheme is based on
the fact that most workplace accidents occur without fault
or in a manner making assignment of fault nearly impos-
sible. This assumption is not relevant to injuries resulting
from medical malpractice, which occurs away from the
work area, is easier to identify, and can be judged in light
of ascertainable medical standards. Medical malpractice,
unlike the occupational accidents that are an inevitable
consequence of working, is neither inevitable nor a risk
that is inherent in the work process.
Third, workers’ compensation law is supposed to pro-
vide employers with an economic incentive to deter future
accidents. If the employer/hospital is allowed immunity
based on the Act, hospitals would be invulnerable to
malpractice action by those victims who by coincidence
are employees. If the employer/hospital knows that dam-
ages will be limited by the Act, all deterrence to negligence
would be removed. There is simply no reason to allow a
hospital to escape liability for the negligent rendering of
medical treatment to any member of society. The Supreme
Court of California holding for the employee/patient
stated:
. . it may be said that in treating plaintiff’s in-
juries the hospital did not act in its capacity as
employer but as a hospital, and since it assumed
the obligations of a hospital to a patient it should
be liable in that capacity rather than as an em-
ployer for an aggravation of plaintiff's injury.
D’Angona, supra at 242.
Finally, the lower court’s decision holds a health care
provider to a lesser standard of care if its patient happens
to be an employee. A health care provider can discriminate
against its own employees with impunity since traditional
12
tort remedies and their deterrent effect would not apply to
the care given to the employee. The Supreme Court of
Pennsylvania, recognizing this glaring inconsistency, con-
cluded:
. . . that Workmen’s Compensation is not her
{appellant’s] exclusive remedy. There is no rea-
son to distinguish appellant [employee] from any
other member of the public injured during the
course of treatment. The risk of injury which ap-
pellant suffered was a risk to which any member
of the general public receiving like trearment
would have been subjected.
Tatrai, supra at 439 A.2d 1166.
In light of the overwhelming authority in favor of ap-
plying the dual capacity doctrine to employers who possess
a second persona and the aforementioned public policy
considerations, the lower court’s decision, if upheld,
would adversely affect substantial rights and liabilities of
many employees who share petitioner’s predicament. To
allow Lindsay or any of its followings to stand would be
derelict to common sense and cause serious consequences
now and in the future. To avoid further growth of the
lower court’s rationale, immediate resolution of this mat-
ter is required at this time.
13
CONCLUSION
Wherefore, Charles P. Morris and Henrietta Morris
pray that this Court grant their Petition for a Writ of Cer-
tiorari or any other relief that this Court deems appropri-
ate.
Respectfully submitted,
Joseph H. Koonz, Jr.
Carolyn McKenney
Roger C. Johnson
Mark J. Brice
(Counsel of Record)
KOONZ, McKENNEY &
JOHNSON, P.C.
2020 K Street, N.W.
Suite 840
Washington, D.C. 20006
(202) 659-5500
Aitorneys for Petitioners
August 7, 1984
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 83-1779 September Term, 1983
Civil Action No. 83-01314
Charles P. Morris,
Appellant
Henrietta Morris
Wife of Charles P. Morris
oe
Providence Hospital
~ No, 83-1786 Civil Action No. 83-01314
Charles P. Morris, et al.
Vv.
Providence Hospital,
Appellant
APPEALS FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA.
Before: EDWARDS and SCALIA, Circuit Judges,
and FRIEDMAN, *Circuit Judge, United
States Court of Appeals for the Federal Cir-
cuit.
JUDGMENT
These causes came on to be heard on the record on ap-
peal from the United States District Court for the District
of Columbia. Upon consideration of the foregoing, it is
*Sitting by designation pursuant to 28 U.S.C. §291(a) (1976).
2a
ORDERED and ADJUDGED, by this Court, that the
decision of the District Court is affirmed, for the reasons
set forth in the accompanying Memorandum.
It is ORDERED, sua sponte, that the Clerk shall
withhold issuance of the mandate herein until seven days
after disposition of any timely petition for rehearing. See
Local Rule 14, as amended on November 30, 1981 and
June 15, 1982. This instruction to the Clerk is without pre-
judice to the right of any party at any time to move for ex-
pedited issuance of the mandate for good cause shown.
Bills of cost must be filed within 14 days Per Curiam
after entry of judgment. The Court For The Court
looks with disfavor upon motions to file
bills of costs out of time. /s/ George A. Fisher
Clerk
MEMORANDUM
Although the D.C, Court of Appeals sitting en banc has
suggested that it is bound by our prior decision in Lindsay
v. George Washington University, 279 F.2d 819 (D.C. Cir.
1960), it is not at all clear that they were so bound in this
case, or that they should consider themselves so bound in
the future. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.
1971). It is clear, however, that our prior decision in Lind-
say is squarely on point, and, absent a reconsideration of
Lindsay by this court sitting en banc, we will not overrule
a prior decision by a panel in this Circuit. See United
States v. Caldwell, 543 F.2d 1333, 1369 n.19 (D.C. Cir.
1974) (as amended 1975) (Supplemental Opinion), cert.
denied, 423 U.S. 1087 (1976); United States v. Lewis, 475
F.2d 571, 574 (Sth Cir. 1972). Accordingly, the District
Court properly granted summary judgment for the appel-
lee and dismissed the complaint. FILED APR 13 1984
GEORGE A. FISHER
Clerk
a cs ” a
3a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES P. MORRIS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action
) No. 83-1314
PROVIDENCE HOSPITAL, )
)
Defendant. )
)
MEMORANDUM
Charles Morris was employed as a chauffeur by defen-
dant hospital. The hospital’s Employee Health Care Cen-
ter treated him for acute back pain suffered while on the
job. Later the hospital staff performed surgery which was
unsuccessful. The complaint here alleges that as a result of
the defendant hospital’s negligent performance of the
medical services it rendered to Mr. Morris, he has suffered
loss of bladder and bowel control, paralysis of both feet,
significant loss of leg functioning, severe shock to his ner-
vous system and permanent disability. Mrs. Morris sues
for loss of her husband’s consortium.
The hospital moves to dismiss the complaint or for sum-
mary judgment. Its theory is twofold: first, that the Dis-
trict of Columbia workmen’s compensation statute, D.C.
Code § 36-501 (1973), provides the exclusive remedy for
plaintiffs and, as a local statute, does not provide this
Court with the federal question jurisdiction that plaintiffs
allege; and second, that plaintiffs have already litigated
and lost this case in the Superior Court for the District of
4a
Columbia and are therefore barred from relitigating it
here on res judicata grounds.
The first argument speaks for itself; the second requires
explication. Defendant’s exhibits show and (plaintiffs con-
cede) that this same medical malpractice suit was earlier
filed in the Superior Court of the District of Columbia.
Morris v. Providence Hospital, C.A. 9449-81 (June 25,
1981). That court dismissed the complaint on the authority
of Lindsay v. George Washington University, 279 F.2d
819 (D.C. Cir. 1960).*
On appeal from the dismissal of the Morris case, a panel
of the District of Columbia Court of Appeals considered
itself bound by Lindsay and therefore affirmed, suggest-
ing that plaintiffs seek a rehearing en banc so that the
court could “address more fully” the contention that Lind-
say should be reexamined. Morris v. Providence Hospital,
No. 82-182 (D.C. Ct. App. Jan. 3i, 1983). The D.C.
Court of Appeals sitting en banc denied rehearing,
however, on the ground that “the issue presented is one of
interpretation of a federal statute thus precluding a ques-
tion of local law construction.” Morris v. Providence
Hospital, No. 82-182 (D.C. Ct. App. March 16, 1983). No
petition for certiorari from this en banc decision was filed.
Plaintiffs oppose defendant’s motion on both grounds.
They contend that the merits of this litigation have never
*In Lindsay, an employee of defendant hospital was injured while
on the job and was treated for his injury by the hospital. His injuries
were much less serious than plaintiffs’ here, but he also sued the
hospital for malpractice. In affirming a grant of summary judgment
for the hospital, the Court of Appeals stated that the exclusivity clause
of the workmen’s compensation statute was not avoided by “the for-
tuity that the employer . . . also operated the hospital where the pro-
fessional services complained of were rendered.” /d. at 821.
Sa
been heard or decided by any court, so that res judicata
doctrines are inapplicable. This response is accurate.
As to federal question jurisdiction, plaintiffs point out
that the D.C. Workmen’s Compensation Act of 1928
adopted the identical language of the federal Long-
shoreman and Harbor Workers’ Compensation Act, 33
U.S.C. § 905(a). They cite Del Vecchio v. Bowens, 296
U.S. 280, 281-282 (1935), for the proposition that issues
involving the District of Columbia Workmen’s Compensa-
tion Act are federal questions because their resolution sets
nationwide precedent for the identical federal Act. Plain-
tiffs further point to the order of the D.C. Court of Ap-
peals denying them rehearing, essentially because the case
raised a federal question. Thus plaintiffs argue that fed-
eral jurisdiction in this case is proper and in fact required.
In the present posture of this case, it may be assumed
that there is a federal question and that, in declining to ad-
dress it, the local Appeals Court preserved the underlying
merits for consideration when and if the precedential ques-
tion is settled. Res judicata is therefore no bar. But Lind-
say is. At oral argument the parties conceded, and the
Court has determined, that plaintiffs’ case cannot be dis-
tinguished from Lindsay and that Lindsay is dispositive of
“their claim. The original D.C. Court of Appeals panel
hinted that Lindsay might merit reconsideration; see also
Tatrai v. Presbyterian University Hospitai, 439 A.2d 1162
(Pa. 1982) (concurring majority opinion) (adopting “dual
capacity” theory to permit recovery by employees against
employers not acting as employers at the time of injury);
D’Angona v. County of Los Angeles, 27 Cal. 3d 661, 613
P.2d 238 (1980) (same); Guy v. Arthur H. Thomas
Co.,378 N.E.2d 488 (Ohio 1978) (same). The en banc
court’s reaction indicates an expectation that such requests
for reconsideration should be addressed to the federal
6a
Court of Appeals that decided Lindsay. In any case, Lind-
say is binding on this Court. On its authority, the accom-
panying Order will grant defendant’s motion for summary
judgment and dismiss the complaint.
Date: June 22, 1983 /s/ Louis F. Obendorfer
UNITED STATES DISTRICT JUDGE
FILED
JUNE 23 1983
CLERK, U.S. DISTRICT COURT
DISTRICT OF COLUMBIA
7a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES P. MORRIS, et al.,
)
)
Plaintiffs, )
)
v. ) Civil Action
) No. 83-1314
PROVIDENCE HOSPITAL, )
)
Defendant. )
)
ORDER
For reasons stated in the accompanying Memorandum,
it is this 22d day of June, 1983, hereby
ORDERED: that defendant’s motion for summary
judgment is GRANTED: and it is further
ORDERED: that the complaint should be and is hereby
DISMISSED.
/s/ Louis F. Obendorfer
UNITED STATES DISTRICT JUDGE
FILED
JUNE 22, 1983
CLERK, U.S. DISTRICT COURT
DISTRICT OF COLUMBIA
8a
APPENDIX C
DISTRICT OF COLUMBIA COURT OF APPEALS
500 Indiana Avenue, N.W.
Washington, D.C. 20001
(202) 638-7113
No. 82-182
CHARLES P. MORRIS, ET AL., Appellants,
v. CA 9449-81
PROVIDENCE HOSPITAL, Appellee.
BEFORE: Newman, Chief Judge; Kern, Nebeker, Mack, Ferren,
Pryor, Belson, and Terry, Associate Judges.
ORDER
On consideration of appellants’ motion for reconsidera-
tion in support of petition for rehearing en banc, it is
ORDERED that appellants’ motion for reconsideration
is denied.
PER CURIAM
Copies to:
Honorable Sylvia Bacon
Clerk, Superior Court
Mark J. Brice, Esq.
2020 K Street NW, #840
Washington, DC 20006
Walter J. Murphy, Jr., Esq.
Wheaton Plaza North Building, #703
Wheaton, MD 20902
DISTRICT OF COLUMBIA
COURT OF APPEALS
FILED
APR 14 1983
KXKKMAKKKKX
Clerk
9a
DISTRICT OF COLUMBIA
COURT OF APPEALS
No. 82-182
CHARLES P. MORRIS,
AND HENRIETTA MORRIS, Appellants,
Vv. CA 9449-81
PROVIDENCE HOSPITAL, Appellee.
BEFORE: Newman, Chief Judge; Kern, Nebeker, Mack, Ferren,
Pryor, Belson, and Terry, Associate Judges.
ORDER
On consideration of the petition for rehearing en banc
and the ensuing pleadings relating thereto, and it appear-
ing to the court that the issue presented is one of interpre-
tation of a federal statute thus precluding a question of
local law construction, it is
ORDERED that the aforesaid petition is denied.
PER CURIAM
Copies to:
Honorable Sylvia Bacon
Clerk, Superior Court
Mark J. Brice, Esq.
2020 K Street NW, #840
Washington, DC 20006
Walter J. Murphy, Jr., Esq.
Wheaton Plaza North Building, #703
Wheaton, MD 20902
DISTRICT OF COLUMBIA
COURT OF APPEALS
FILED
MAR 16 1983
XXXXXXAKKKK
Clerk
10a
APPENDIX D
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 82-182
CHARLES P. MORRIS, et al.,
Appellants,
v. CA 9449-81
PROVIDENCE HOSPITAL,
Appellee.
Appeal from the Superior Court of the
District of Columbia
Civil Division
(Hon. Sylvia Bacon, Trial Judge)
(Argued January 20, 1983 Decided January 31, 1983)
Before KERN, NEBEKER and FERREN, Associate
Judges.
MEMORANDUM OPINION AND JUDGMENT
Appellant injured his back in April 1980, in the course
of his employment as a chauffeur for Providence Hospi-
tal. Immediately following the injury, and for several
weeks thereafter, appellant received treatment at the
Employees Health Dispensary of Providence Hospital.
During the course of appellant’s treatment, his condition
worsened, surgery was required (but was unsuccessful),
and appellant is now partially paralyzed.
Appellant and his wife brought suit against Providence
Hospital in June 1981, alleging malpractice in the treat-
ment of his back injury, and claiming, inter alia, loss of
consortium for his wife. Their suit was dismissed by the
lla
trial court on the authority of Lindsay v. George Wash-
ington University, 2798 F.2d 819 (D.C. Cir. 1960), which
held on similar facts that a suit against the employer for
damages, in addition to workmen’s compensation, is bar-
red by the exclusive liability provisions of the D.C. Work-
men’s Compensation Act.!
The parties are agreed that this case is not significantly
distinguishable from the Lindsay case and therefore that
Lindsay is co.uwirelling precedent. However, appellant
argues that the Lindsay decision is unjust to an employee
in circumstances where the injury results from acts of the
employer which are independent from and unrelated to the
employer-employee relationship. Appellant urges that
court to adopt the “dual capacity” doctrine applied in
other jurisdictions to permit recovery against an employer
for injuries incurred in transactions where the employer
was acting, not as employer, but as a separate “third” per-
son.? E.g., Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8
(1952); D’Angona v. County of Los Angeles, 27 Cal.2d
661, 613 P.2d 238 (1980); Guy v. Arthur H. Thomas Co.,
55 Ohio St.2d 183, 378 N.E.2d 488 (1978); Tatria v.
Presbyterian University Hospital, 439 A.2d 1162 (Pa.
1982); see 2A A. Larson, Larson’s Workmen’s Compensa-
tion Law, §§ 72.61(c), 72.81 (1982).
However, under M.A.P. v. Ryan, 285 A.2d 310 (D.C.
1971), we may not refuse to follow such a controlling prior
'‘Longshoremen’s and Harbor Workers’ Compensation Act, 33
U.S.C. § 901, ef. seq., as made applicable to the District of Columbia
by D.C. Code § 36-501 (1973 ed.). 33 U.S.C. § 905 provides that the
liability of an employer as prescribed by the Act “shall be exclusive
and in place of all other liability of such employer to the
employee... .”
233 U.S.C. § 933 describes a third party as “some person other than
the employer or a person or persons in his employ.”
12a
opinion of the United States Court of Appeals for the Dis-
trict of Columbia Circuit except by decision of the full
court sitting en banc. Thus, we are constrained to affirm
the trial court’s dismissal of appellant’s suit. Of course, ap-
pellant may wish to use his petition for hearing en banc as
a petition for rehearing en banc; and appellee may then
file a response thereto. The full court may then consider
the need to address more fully the contentions in light of
the division’s holding that Lindsay is controlling.
Accordingly, it is ORDERED and ADJUDGED that
the judgment on appeal herein is affirmed.
FOR THE COURT:
/s/ Alan I. Herman
Alan I. Herman, Clerk.
Copies to:
Honorable Sylvia Bacon
Clerk, Superior Court
Mark J. Brice, Esq.
2020 K Street NW, #840
Washington, DC 20006
Walter J. Murphy, Jr., Esq.
Wheaton Plaza North Building, #703
Wheaton, MD 20902
DISTRICT OF COLUMBIA
COURT OF APPEALS
FILED
JAN 31 1983
/s/ Alan 1. Herman
Clerk
l3a
APPENDIX E
DISTRICT OF COLUMBIA COURT OF APPEALS
500 Indiana Avenue, N.W.
Washington, D.C. 20001
(202) 638-7113
No. 82-182
CHARLES P. MORRIS, ET AL., Appellants,
v. CA 9449-81
PROVIDENCE HOSPITAL, Appellee.
BEFORE: Newman, Chief Judge; Kelly, Kern, Nebeker, Mack,
Ferren, Pryor, Belson, and Terry, Associate Judges.
ORDER
On consideration of appellants’ petition for hearing en
banc and it appearing that the majority of the judges of
this court has voted to deny the petition, it is
ORDERED that appellants’ petition for hearing en banc
is denied.
PER CURIAM
Copies to:
Mark J. Brice, Esq.
2020 K Street NW, #840, 20006
Walter J. Murphy, Jr., Esq.
Wheaton Plaza North Building, #703
Wheaton, MD 20902
DISTRICT OF COLUMBIA
COURT OF APPEALS
FILED
NOV 10 1982
/s/ Alan I. Herman
Clerk
14a
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 83-1779 September Term, 1983
CHARLES P. MORRIS, et al., Civil Action
Appellants No. 83-01314
ve
Providence Hospital
And Consolidated Case No. 83-1786
BEFORE Robinson, Chief Judge; Wright, Tamm, Wilkey, Wald
Mikva, Edwards, Ginsburg, Bork, Scalia and Starr, Cir-
cuit Judges and Friedman,* Circuit Judge, United States
Court of Appeals for the Federal Circuit
ORDER
The Suggestion for Rehearing en banc of Appellants
Morris, et al., has been circulated to the full Court and no
member has requested the taking of a vote thereon. On
consideration of the foregoing, it is
ORDERED by the Court en banc that the aforesaid
Suggestion is denied.
Per Curiam
United States Court of Appeals For the Court:
for the District of Columbia
FILED “
MAY 9 1984 GEORGE A. FISHER, Clerk
GEORGE A. FISHER
Clerk BY: /s/ Robert A. Bonner
Robert A. Bonner
Chief Deputy Clerk
*Sitting by designation pursuant to Title 28 U.S.C. § 291(a).
15a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 83-1779 September Term, 1983
CHARLES P. MORRIS, et al., Civil Action
Appellants No. 83-01314
v.
Providence Hospital
And Consolidated Case No. 83-1786
BEFORE Edwards and Scalia, Circuit Judges, and Friedman, Cir-
cuit Judge, United States Court of Appeals for the
Federal Circuit
ORDER
On consideration of the Petition for Rehearing of Ap-
pellants Morris, et al., filed April 26, 1984, it is
ORDERED that the aforesaid Petition for Rehearing is
denied.
Per Curiam
For the Court:
GEORGE A. FISHER, Clerk
BY: /s/ Robert A. Bonner
Robert A. Bonner
Chief Deputy Clerk
*Sitting by designation pursuant to Title 28 U.S.C. § 291(a).
United States Court of Appeals
for the District of Columbia
FILED
MAY 9 1984
GEORGE A. FISHER
Clerk
l6a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 83-1779 September Term, 1983
CHARLES P. MORRIS,
Appellants
Henrietta Morris
Wife of Charles P. Morris
V.
Providence Hospital
AND CONSOLIDATED CASE No. 83-1786
BEFORE Robinson, Chief Judge; Wright, Tamm, Wilkey, Wald
Mikva, Edwards, Ginsburg, Bork, Scalia and Starr, Cir-
cult Judges
ORDER
The Suggestion for Initial Hearing En Banc, filed
September 27, 1983, has been circulated to the full Court
and no member has requested the taking of a vote thereon.
On consideration of the foregoing, it is
ORDERED by the Court en banc that the aforesaid
Suggestion for Hearing En Banc is denied.
Per Curiam
For the Court:
GEORGE A. FISHER, CLERK
sicinh Waidida Aelia 08 Raieiaile BY: /s/ Daniel M. Cathey
nite ates Court o % = v
for the District of Columbia First Deputy Clerk
hiLED
JAN 28 1984
GEORGE A. FISHER
Clerk
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