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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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