Petition for rehearing was granted in this case, and on court order based on petitions therefor, the following counsel appeared, amici curiae: Wm. D. Keeton, Ralph R. Breshears, Judge W.F. McNaughton and Robert H. Elder.
The cause was reargued at the Coeur d'Alene Term on the 27th day of May, 1944, and elaborate, exhaustive and able briefs have been filed by respective counsel.
Objections to the decision seem to be generally predicated on the following grounds, to-wit:
(1) It is urged the Court failed to fully consider the provisions of Sec. 43-1109, I. C. A.
(2) That Sec. 43-1004, I. C. A., which permits election of remedies by the workman is not broad enough to include the alleged malpractice of a physician, and that physicians are not third parties within the meaning of this said section.
(3) That under Sec. 43-1108, I. C. A., the workman accepts the physician and his liability for treatment in substitution of the employer, and hence is entitled to the security afforded by the Workmen's Compensation Law for the malpractice of the physician.
(4) That since Sec. 43-1109, I. C. A., requires the contract physician to furnish bond, if required, recovery may be had out of the bond for the malpractice of the physician.
(5) That physicians, under Sec. 43-1108, I. C. A., and Sec.43-1109, I. C. A., are contract physicians by the mutual acts of the employer and employee.
(6) That the Court's decision is based primarily upon decisions from other jurisdictions therein cited, it being suggested these decisions are not authority for the construction which we placed on our own Workmen's Compensation Law on the points involved, inasmuch as the decisions are from jurisdictions having no statutory provisions on the questions under consideration similar to the provisions of our own statute.
With respect to the last contention above referred to, we pointed out in the decision that our statutes were to be *Page 673 determined on a basis of the intent of the Legislature, to be obtained as that intent was expressed in the statute directly or by necessary implication. The reference to the decisions not having similar statutory provisions, which we referred to and cited therein, was for the purpose of illustrating the reasoning of the different courts on questions pertaining to the liability of a physician for malpractice in treating compensation cases, rather than as precedence based upon like statutes. Some of the cases cited as well as other cases involving the question, are collected and discussed in an exhaustive article on the subject, "Malpractice Actions and Compensation Acts," by Paul A. Leidy, Professor of Law, University of Michigan, in the Michigan Law Review for March, 1931.
Several objections to the decision are premised upon the conclusion this Court has overlooked the purpose of our Workmen's Compensation Law as expressed in Secs. 42-902 and43-1003, I. C. A. As we read these sections, they apply to injuries to a workman arising out of and in the course of his employment. In such event, the rights and remedies granted by those sections, of course, exclude all other rights and remedies of the employee but we cannot read into these provisions or any other provisions of our statute, an expression of our legislature to the effect that injuries received by a workman which were not received in his employment and in the course thereof, were to be covered by these provisions. The Legislature, in referring to the rights and remedies therein granted make the act exclusive against the employer.
As stated in the original opinion, the injury to the workman in the case at bar was an independent injury which did not arise out of or in the course of his employment. Rather it was the result of a tort committed upon him by third persons — the contracting physicians and their attendants, while treating an injury arising out of and in the course of employment.
It is not thought that Sec. 43-1109, I. C. A., providing for a bond on the part of the contracting hospital, if required by the board, in any way lessens the liability for tort of the contracting hospital or physician. Whether or not a right of action on the bond is vested in the employer or employee, or both, is not raised by the issues in this *Page 674 case, and neither is the right of enforcement of liability which may accrue under the bond.
By the provisions of Sec. 43-1004, I. C. A., the Legislature intended to grant to the injured employee an option to claim compensation under the act or to proceed at law against a third person when the injury for which compensation is payable under the act has been sustained under circumstances creating in such third person a legal liability to pay damages in respect thereto. The provisions of this section are clear and unambiguous and we think that had the Legislature intended to except an injury through malpractice at the hands of a contracting physician, it would have so declared.
In case an employer has been called upon under the Act to make payments to compensate for such injuries, he is subrogated to the rights of the injured employee to recover the amounts thus paid out and should the employer recover more, then the excess is to be paid to the injured employee, less the employer's expenses and costs of action, if he prosecute one.
Similar statutory provisions are discussed by Professor Leidy in the article above referred to, and as his analysis of the rights and remedies of a workman under such a statute appear to us to be clear and logical, we quote in part from the article, as follows:
"It is very commonly provided that, if the employee is hurt while in the course of his employment, under such circumstances as would create at common law a right of action against 'some one other than his employer' — or 'some third person' — the injured employee may, at his option, pursue his common law remedy against the actual wrongdoer, or, in the alternative, claim his statutory compensation from his employer. If the statutory phrase is of the first type — 'some one other than his employer' — there would seem to be little doubt as to its meaning. If the phraseology is of the second type — 'a third person' — there might be more room for argument, though the legislative intent would seem to be sufficiently clear. With no attempt to exhaust the cases in which the words 'third person' have been interpreted it may be said that there is authority for the statement that a fellow employee is such a third person, an official of the employing company may be such a third person, and an agent of the employer comes within the *Page 675 meaning of the expression. The surgeon who attempts to set the employee's fractured femur would certainly appear to be no less a third person whether he be selected by the employer or by the injured employee. We might expect that the common law tendency suggested above, to look for the last wrongdoer, would raise some doubts as to the liability of the original actor for the subsequent malpractice. We could conceive of different results being reached in the event that the physician was selected by one party or the other. But, whatever the merits of the distinction, from the standpoint of causation, there would appear to be no merit to such a distinction when the problem is simply one of statutory interpretation of the expression under consideration. The words used would seem to be as inclusive as the New Jersey Court suggested when, in determining that a fellow servant was such a third person, it said: 'We see no reason for attributing to the words 'third person' any other meaning than the usual one. It must mean, as indeed the subsequent language of the section makes perfectly clear, a person other than the employer and employee.' So construed, then, the physician is a 'third person,' even though he be the 'company doctor.' This provision of the statute covers our case, then, if (1) the aggravation is an 'injury' within the meaning of this section of the statute, and if (2) the employee may be said to have received the injury 'while in the course of his employment.'
"On the first point there would seem to be grave doubts as to whether the legislature meant to include the malpractice cases. It would seem more likely that 'injuries received under such circumstances as would, at common law, create liability in some third person' would contemplate those original injuries so received. But, admitting the doubt, whether it is resolved for or against the inclusion of the malpractitioner's acts would seem to be of no great importance. For, if such injury was meant, the workman would appear to have the option provided by the section under consideration. If such an injury was not contemplated, the workman would have his common law right against the negligent attending physician, if we are correct in assuming that only insofar as the statutes expressly or by necessary implication provide, that there shall be an alteration of the common law rights of the employees. The second point presents an interesting question, and yet, here again, there would appear to be no great difference in the rights *Page 676 of the injured workman, however it is answered. It might, with some force, be argued that when injured by the malpractitioner, the workman was not 'in the course of his employment.' The fact that the courts hold the employer liable for compensation for the extra period of disability, would in no way require the conclusion that the workman was 'in the course of the employment' during the period of extra disability, nor, for that matter, during the period of disability resulting from the original injury. The employer is liable, because, as a matter of causation, following the decisions of similar cases at common law, the disability produced by the negligent attending physician was a proximate, and not a remote, consequence of the original injury for which the employer was already liable under the act. Hence, here, as in the case of the question as to whether or not this was such an injury as the legislatures had in mind when framing this section of the Compensation Acts, there would seem to be no serious obstacle to the servant's recovering from the malpractitioner. If the injury was received 'while in the course of the employment, the section would give the employee his option. If such an injury may be said to have been received when the workman was not in the course of his employment, his common law action against the physician would appear to be intact. Apparently the attorneys for workmen suffering these double injuries have reasoned somewhat as has been suggested above, and, assuming that the employee's common law rights did still exist against the negligent physicians, they have advised actions at law in some cases."
The fact that the contract specified by Sec. 43-1108, I. C. A., is a mutual one of the employer and the employee and the contracting hospital does not lessen the liability of the contractor to the patient for malpractice. Neither does the fact that hospitals entering such contract, are maintained under the supervision of the board as to services and treatment rendered, excuse a responsibility to the patient for proper treatment, nor vest in the board under such circumstances as exist in this case, sole power to determine whether or not proper treatment is rendered. It seems to us that under our statute, the jurisdiction of the Industrial Accident Board, is limited to cases involving questions between the employee and employer and that such Board is without jurisdiction in a case like this where the employee *Page 677 seeks, through the courts, to enforce a common law right against a third person.
We adhere to our former decision.
Givens, J., concurs in this decision. Budge, J., concurs in the conclusion reached.