dissenting:
I dissent because I take a view different from that of the majority of Caterpillar’s role in the malpractice that aggravated McCormick’s original injury. My appraisal is that Caterpillar’s conduct in employing doctors to provide medical services generated obligations other than those flowing from Caterpillar’s role as McCormick’s employer. I believe the dual-capacity exception to the exclusive-remedy provision of the Workmen’s Compensation Act should apply.
It is significant to point out that when McCormick went to Caterpillar’s doctors for treatment the relationship was entirely voluntary. Caterpillar and McCormick had an employment relationship; then, separately, McCormick and the doctors entered a patient-doctor relationship.
Caterpillar did not have to employ doctors of its own to treat McCormick. Its duty was only to make sure that adequate treatment was available; it could have brought in doctors as independent contractors, or referred McCormick to outside doctors.
“The medical treatment of injuries is a separate and distinct function *** which does not concern the employer and is not part of the employer’s business operations.” (Tropiano v. Travelers Insurance Co. (1974), 455 Pa. 360, 363, 319 A.2d 426, 427.)
“There is nothing in the Workmen’s Compensation Act which requires a compensation carrier, any more than an employer, to maintain and operate a clinic. ***
* * *
[The defendant] would avoid the realities of the case. It was under no statutory or other obligation to run a clinic. Since it undertook to do so, it had the unquestioned duty of exercising reasonable care (the same standard as would be applicable to any other clinic or hospital facility) ***.” Mager v. United Hospitals (1965), 88 N.J. Super. 421, 427-29, 212 A.2d 664, 667-68, adopted by supreme court (1966), 46 NJ. 398, 217 A.2d 325.
More significantly, McCormick did not have to go to the Caterpillar clinic. Section 8(a) of the Workmen’s Compensation Act allowed him to go to any doctor he chose, and to send Caterpillar the bill. Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a).
There was no medical urgency; the injury could have been treated elsewhere. Even on McCormick’s first visit, there was evidence that the injury was not treated for several hours. McCormick returned to the clinic at intervals for more than a month, working and generally getting around in the meanwhile.
Thus, the only reason McCormick was treated by Caterpillar doctors was that the employer chose to offer medical services through its own doctors and McCormick went to the company clinic for treatment. There was, of course, a doctor-patient relationship between the Caterpillar doctors and McCormick, just as between any doctor and patient. This relationship had to be voluntarily assumed by both sides; it did not just naturally grow out of the employment and the work-related injury.
The majority’s cases may be distinguished along these lines. Under Mississippi (Trotter v. Litton Systems, Inc. (Miss. 1979), 370 So. 2d 244) and Florida (Warwick v. Hudson Pulp & Paper Co. (Fla. App. 1974), 303 So. 2d 701) law, as Trotter stresses, the employer has the right to choose the doctor; if the injured employee goes to his own, he pays his own bill. The connection between the doctor and the employer is therefore closer than is required in Illinois. (Cf. Vesel v. Jardine Mining Co. (1940), 110 Mont. 82, 104-05, 100 P.2d 75, 85 (distinguishing States that require the employer to furnish medical aid from Montana, which does not).) A close connection between medical treatment and employment may also be provided by medical urgency. If the employee is seriously injured so that he requires immediate attention, he may have no chance to leave the employment setting, and the employer may have no chance to call in an outside doctor. First aid must be provided by someone who is always available, often probably an employee, and often not a doctor. When the victim’s condition is aggravated because the person responsible for first aid does not realize the seriousness of the injury or sends him to an incompetent doctor (Deauville v. Hall (1961), 188 Cal. App. 2d 535, 10 Cal. Rptr. 511) or slouches at his desk, smoking and reading (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229), the essence of the plaintiff’s complaint is that the employer failed to provide necessary medical care — failed, that is, to discharge a duty imposed on it as an employer, by the Act. A stranger, even if a doctor, is not required to provide first aid or maintain a list of competent doctors. Here, in contrast, the complaint is that the employer breached a duty owed by every doctor to every patient, a duty imposed neither by the Act nor by the employment relationship, but assumed by Caterpillar when it decided to provide medical services.
McCormick’s malpractice claim and his compensation claim are not only different legal theories, different ways of talking about the same claim. The malpractice claim is based on a second injury, a distinct event, an obviously separate nexus of facts. Caterpillar is hable for McCormick’s aggravated injury in two ways: it is liable for the original injury even as aggravated, and it is liable for aggravation. Caterpillar was responsible, under the compensation act, for the effects of the initial work-related accident no matter how the first injuries might be aggravated, much as at common law the tortfeasor is responsible for all proximate results of the tort including aggravation by imperfect medical care. That responsibility did not depend on how the aggravation came about; Caterpillar would have been responsible if McCormick aggravated his injuries by falling while getting out of bed (G.H. Hammond Co. v. Industrial Com. (1919), 288 Ill. 262) or stumbling on the street near his house (Bailey v. Industrial Com. (1919), 286 Ill. 623). But also, Caterpillar may be liable like anyone else if it actually causes the aggravation by its negligence, or its servants’ negligence. Does the employer’s immunity from a tort suit for the original accident carry over to its later conduct in aggravating the injury?
The frequently cited decision in Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8, holds that it may not. Because the first injury was work related does not mean that the aggravation, as such, is also work related. As one court said, in allowing a tort action against a compensation insurer:
“The suggestion that runs through the insurer’s argument *** is that what happened at the clinic was nothing more than a sequel to the original work-connected injury. [The defendant’s] brief refers to the sequelae as an ‘aggravation’ of the original injury. This is merely another way of seeking the protection of the employer’s liability, limited as it is to the schedules in [the act].” (Mager v. United Hospitals (1965), 88 N.J. Super. 421, 428, 212 A.2d 664, 668, adopted by supreme court (1966), 46 N.J. 398, 217 A.2d 325.)
Another court explained in allowing a tort action against an employer:
“The injury complained of — death—is not alleged to have arisen out of and in the course of employment. [The plaintiff] alleges only that the strains and sprains requiring the medication ultimately resulting in death occurred during the employment. She does not allege that the medical treatment itself arose out of and in the course of employment.” (Szydlowski v. General Motors Corp. (1975), 59 Mich. App. 180, 183, 229 N.W.2d 365, 367.)
The victim is not necessarily out of luck if the aggravation happens to be caused by the original employer or another employee.
The majority opinion tries to present Duprey as a freak, given little credence even in California. Quite the contrary, California courts have recently reaffirmed it (D’Angona v. County of Los Angeles (1980), 27 Cal. 3d 661, 613 P.2d 238, 166 Cal. Rptr. 177), applied it to sustain a malpractice action against a company doctor who negligently treated an industrial injury, as in the present case (Hoffman v. Rogers (1972), 22 Cal. App. 3d 655, 99 Cal. Rptr. 455), and extended the doctrine to the product liability context (Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 137 Cal. Rptr. 797). In D’Angona, the California Supreme Court disposed of Deauville v. Hall (1961), 188 Cal. App. 2d 535, 10 Cal. Rptr. 511, on which the majority opinion relies, by stating that Deauville involved a fundamentally different situation, in which the employee was trying to hold the employer liable for the aggravation of an injury by an outside physician to whom the employee was referred — not by an in-house doctor:
“Larson recognizes the difference ***, stating that there is a ‘crucial difference’ between ‘Paying for services and physically performing them’ because it is ‘virtually impossible to cause physical injury by writing a check’ but ‘very possible’ to do so by ‘administering medical treatment ....’” (D’Angona v. County of Los Angeles (1980), 27 Cal. 3d 661, 668, 613 P.2d 238, 243, 166 Cal. Rptr. 177, 182.)
Duprey, moreover, was not a narrowly written opinion; much of the language applies to this case. For example:
“ ‘That independent professions by the fact of business contact with the employer should be absolved of responsibility for mistake, avoidable or unjustified neglect resulting in secondary affliction, seems obnoxious to the purpose and spirit of such a statute. To so hold might induce industry to encourage quackery, and place a premium upon negligence, inefficiency and wanton disregard of the professional obligations of medical departments of industry, toward the artisan.’ ” 39 Cal. 2d 781, 791, 249 P.2d 8, 14.
This court, in adopting the idea of dual capacity in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, cited Duprey as one of the leading cases on the subject. Employer liability for medical malpractice, as in Duprey, has been recognized in Ohio (Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St. 2d 183, 378 N.E.2d 488), Michigan (Szydlowski v. General Motors Corp. (1975), 59 Mich. App. 180, 229 N.W.2d 365), New York (Garcia v. Iserson (1974), 33 N.Y.2d 421, 353 N.Y.S.2d 955; Volk v. City of New York (1940), 284 N.Y. 279, 30 N.E.2d 596), and Montana (Vesel v. Jardine Mining Co. (1940), 110 Mont. 82, 100 P.2d 75). Pennsylvania (Tropiano v. Travelers Insurance Co. (1974), 455 Pa. 360, 319 A.2d 426) and New Jersey (Mager v. United Hospitals (1965), 88 N.J. Super. 421, 212 A.2d 664, adopted by supreme court (1966), 46 N.J. 398, 217 A.2d 325) have held the employer’s compensation insurance carrier liable for the malpractice of its doctors on reasoning that would apply equally .to the employer. The majority’s Mississippi authority (Trotter v. Litton Systems, Inc. (Miss. 1979), 370 So. 2d 244) amounts to a flat rejection of the idea of dual capacity; it is grounded in the notion that if the employer is liable for compensation he cannot also be liable in tort. This court, even before Smith, rejected the position Trotter advances. In Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, this court held that a general contractor who hired a subcontractor without compensation insurance might be liable both for compensation and in tort.
The reasoning of Laffoon was that a victim should not be denied tort recovery because of merely fortuitous circumstances. That is the same idea that underlies the dual-capacity doctrine, as is clear from Smith, which relied on Laffoon. A victim should not be barred because the “third party” tortfeasor happened to be the employer. Laffoon, as its dissent points out, went beyond most States in allowing tort recovery. That same dislike for fortuitous bars to tort recovery led this court, even earlier, to hold unconstitutional a version of the Workmen’s Compensation Act that denied recovery from anyone who was an employer under the Act, even if not the victim’s employer. (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179.) I would therefore not have expected this court to exhibit hostility to the dual-capacity idea.
There is nothing unfair in the employee having the protection of both the compensation system and the tort law, for he could have had both by going to an independent doctor, as the legislature has determined he was entitled to do. The doctor would have been liable in a tort action for any malpractice he committed; and his fee, which the employer would have had to pay, would naturally have reflected that fact. In effect, the employer would have had to bear some share of the cost of the independent physician’s malpractice insurance. The employer would still have had to pay compensation for any aggravation, whatever the cause. If the aggravation were tortious, the employer could get back its money from the doctor; but otherwise, the employer would bear that cost as well.
Under the workers’ compensation system, in return for the loss of his right to sue for his initial injuries, McCormick got no-fault, though limited, protection against such industrial accidents. What did McCormick get for going to the Caterpillar clinic and thereby, under the decision in this case, giving up his malpractice claim? Not no-fault protection — he already had that. He received nothing. That is the kind of arrangement this court struck down in Grasse:
“[T]he classification of injured employees *** is arbitrary and in no way promotes any of the objectives of the act. *** Those injured by third party tort-feasors bound by the act are not entitled to common-law damages from such persons, whereas those injured by third party tort-feasors not bound by the act are allowed to institute actions for damages. Both classes of injured employees may be entitled to compensation from their own employers, so that the amount of compensation, if any, received by the injured employee is not the basis for differentiation between the classes. * * *
* * *
***[T]he fact that the third party tort-feasor may have to pay his own employees compensation or is entitled to compensation himself, does not justify denying the injured employee recovery against such tortfeasor.” (412 Ill. 179, 195-97.)
Common law rights of action should not be deemed taken away except when something of value has been put in their place. 2A A. Larson, Workmen’s Compensation sec. 65.10 (1976).
The only possible advantage McCormick got by going to the clinic was convenience. But convenience is not enough to make an injury work related and bar tort recovery. In Tipple v. High Street Hotel Co. (1941), 70 Ohio App. 397, 41 N.E.2d 879, the plaintiff worked for a hotel, running a cigar stand. She often ate in the hotel restaurant nearby, so that she could keep an eye on the cigar stand and run back when customers appeared. She also got a substantial discount at the restaurant, as an employee. Nevertheless, when she got sick on the food, she was allowed to sue in tort. The court emphasized that while she found it convenient to eat at her employer’s establishment she was not required to do so; it helped her do her job, but it was not part of her job.
Why should Caterpillar be able to shield itself and its doctors from liability by paying them a salary instead of a fee? As the United States Supreme Court said:
“Pan-Atlantic has not pointed and could not point to any economic difference between giving relief in this case, where the owner acted as his own stevedore, and in one in which the owner hires an independent company. *** Petitioner’s need for protection from unseaworthiness was neither more nor less than that of a longshoreman working for a stevedoring company. As we said in a slightly different factual context, ‘All were subjected to the same danger. All were entitled to like treatment under law.’ ” Reed v. The Yaka (1963), 373 U.S. 410, 414-15, 10 L. Ed. 2d 448, 452-53, 83 S. Ct. 1349, 1352-53.
McCormick’s waiver of his tort rights by going to the Caterpillar clinic is especially unfair because there was nothing to warn him of the legal effect of his apparently innocuous choice of doctors. He did not understand what he was giving up for the convenience of a doctor on the work premises. Patients and doctors have deeply rooted expectations about their roles in our system of medical care and the legal aspects of their relation. The law, for example by according a physician-patient privilege, recognizes the relation as unusually important and gives it special protection. Doctors are professionals, who encourage patients to have trust and confidence in them; if the doctor blunders or is disloyal, the doctor and not the patient will pay, at least in money. If a private doctor attempted to disclaim liability for malpractice, the law would take a hard look at that agreement. Yet the majority decision holds that that is what the patient will get as part of his “implied contract” of workers’ compensation (Keller v. Industrial Com. (1932), 350 Ill. 390, 397) if he is so naive as to rely on his employer’s clinic, even though that arrangement is contrary to the patient’s reasonable expectations, and normally disfavored by the law.
To regard the aggravation by malpractice of McCormick’s injury as an industrial accident, for which workers ’ compensation is the exclusive remedy, does not fit in with the purpose and theory of the Workers’ Compensation Act. Workmen’s compensation laws were enacted because the common law defenses of contributory negligence, assumption of risk, and the fellow-servant doctrine made tort recovery for industrial accidents extremely difficult; only about 20% of injured workers recovered. (Note, Dual Capacity Doctrine: Third-Party Liability of Employer-Manufacturer in Products Liability Litigation, 12 Ind. L. Rev. 553 (1979).) “The evil to be remedied *** was that under the common-law rules of master-servánt liability, employees injured in the course of their employment had to bear practically the full measure of their loss, hence a substitute system of liability was provided.” (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 195.) The theory of workmen’s compensation was that industrial accidents were not to be considered anyone’s fault in particular; fault was not to be disputed; rather, accidents were an inherent risk of employment. The great producing cause of injury was regarded as the industry itself, and the industry, not the worker, was to bear the cost like any other cost of production. Ross v. Erickson Construction Co. (1916), 89 Wash. 634, 639, 155 P. 153, 156; see O’Brien v. Rautenbush (1956), 10 Ill. 2d 167, 173-74.
• At least in this State, none of the three classical defenses to employees’ tort claims at common law would have hindered people in McCormick’s position. The fellow-servant doctrine would not have barred recovery, for it applied only to those employees cooperating on a particular project or whose habitual association allowed them influence over one another. (Aldrich v. Illinois Central R.R. Co. (1909), 241 Ill. 402.) The Caterpillar doctors would not have been regarded as fellow servants of McCormick. Similarly, a worker assumed only the natural and ordinary risks incident to the business (Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484), that is, those risks he must have contemplated and accepted in taking the job. Negligent medical treatment was not one of those. And while workers may often get careless on the job and contribute to their initial injuries, there is no reason to believe that the victims of industrial accidents are more likely than other patients to be contributorily negligent in their medical care. Industrial medical malpractice is just like any other medical malpractice, with none of the special problems that led the legislature to a special solution for industrial accidents.
Medical malpractice is not an inherent risk of the tractor business, or of whatever line of work McCormick was in when first injured. It is a feature of medical practice, and its costs should be borne by the medical profession, an ancient and distinct one. The legislature has not seen fit to pass a Patients’ Compensation Act. This court should not, in effect, provide the practitioners of one medical specialty, industrial medicine, with a no-fault malpractice scheme. The Workers’ Compensation Act is not, and was not intended to be, a complete system of social insurance. When an employee is hired, he assumes the hazards and risks of employment that naturally flow from that employment. The risks he accepts should not be extended to those not really incident to the employment, like the risk of medical mistreatment. See Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 111-12, 137 Cal. Rptr. 797, 801-02.
I recognize that in some instances the aggravation itself, as well as the initial injury, is sufficiently within the employment context that workers’ compensation is the exclusive remedy. But, for the reasons stated above, we should not, as the majority does, routinely sweep into the compensation system all aggravations of industrial accidents by the negligence of the in-house medical staff.
The essential issue here is whether McCormick and Caterpillar stepped outside their employment relation and entered a new relation, a new status, namely that of doctor (or doctor’s employer) and patient, assuming corresponding new rights and responsibilities. I believe the issue is essentially one of social reality: How did the participants and those around them perceive what they were doing? What expectations would ordinary people in those circumstances have? How does it strike us now? Is this a case of a tenacious lawyer dredging up some unrealistic legal theory to enable his client, the employee, to evade the compensation limits for an accident that everyone can plainly see arose out of and in the course of employment? Or do we have a company desperately shoving out of sight the hat it was sporting when the malpractice occurred, and grabbing for the helmet labeled “employer”? In the phrase “company doctor,” which word is more significant? As the California courts have put it:
“It is true that the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic. But where, as here, it is perfectly apparent that the person involved — Dr. Shane — bore towards his employee two relationships — that of employer and that of doctor — there should be no hesitancy in recognizing this fact as a fact. Such a conclusion, in this case, is in precise accord with the facts and is realistic and not legalistic.” Duprey v. Shane (1952), 39 Cal. 2d 781, 793, 249 P.2d 8, 15.
“Our society is pluralistic. The same person (real or artificial) from time to time obviously adopts many roles in relationship with others. Our law is replete with these many different roles.
This is not a legalistic machination; nor is it ‘conjuring a nonemployer doppelganger’ out of the manufacturer’s activity. There is nothing ghostly or fictional about two capacities. *** Which combination of jural opposites or jural correlatives apply is dependent in the specific role assumed at the particular time involved. While it may be that a defendant cannot simultaneously be two distinct entities, a defendant can act in two distinct capacities sequentially. ” Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 110-11, 137 Cal. Rptr. 797, 801.
In the average medical-aggravation case, dual capacity is appropriate because of the thick mystique surrounding the roles of doctor and patient. There is no more distinct calling than that of the doctor (Aetna Life Insurance Co. v. Watts (1931), 148 Okla. 28, 35, 296 P. 977, 984); professional responsibility has ancient roots, much like the warranty of seaworthiness (Reed v. The Yaka (1963), 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349). Patients tend to look upon themselves, and to be looked on, temporarily, as patients, whatever else they may be out of the medical setting. Presidents and Caterpillar employees both obey doctors’ orders.
There is one feature of this case, however, which, as Caterpillar stresses, makes this case less appropriate for the dual-capacity doctrine than, for example, Duprey v. Shane. The main difference between this case and Duprey is that the Caterpillar clinic served only employees, not the public. The clinic did not limit itself entirely to the treatment of work-related injuries; but, still, the atmosphere of a clinic for employees must be more employment permeated than the office of Dr. Shane, who gave his employee-patient the same service he would have offered anyone who walked in. Playing a role for the public gives it greater distinctness and defining power, and makes the fact that employees are involved seem more fortuitous. But, the importance of this factor is debatable; the New York Court of Appeals, for example, changed positions on the issue, first deciding that an employee could recover for malpractice in a facility limited to employees (Volk v. City of New York (1940), 284 N.Y. 279, 30 N.E.2d 596), then overruling that case and holding that only public practice creates a dual capacity (Garcia v. Iserson (1974), 33 N.Y.2d 421, 353 N.Y.S.2d 955).
I do not see sufficient reason to limit application of the dual-capacity doctrine to public medical practice. I do not understand why a standard role that the defendant plays in fact only for insiders should not also give rise to tort liability. See Hoffman v. Rogers (1972), 22 Cal. App. 3d 655, 99 Cal. Rptr. 455; Szydlowski v. General Motors Corp. (1975), 59 Mich. App. 180, 229 N.W.2d 365; Tropiano v. Travelers Insurance Co. (1974), 455 Pa. 360, 319 A.2d 426; Mager v. United Hospitals (1965), 88 N.J. Super. 421, 212 A.2d 664, adopted by supreme court (1966), 46 N.J. 398, 217 A.2d 325; Vesel v. Jardine Mining Co. (1940), 110 Mont. 82, 100 P.2d 75 — all cases in which employers, their insurers, or their doctors have been held liable for malpractice in a facility provided only for employees.
In Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, this court held the defendant partner liable in a dual capacity as lessor of a defective product, although there was no indication it ever leased anything to anyone but the partnership. Certainly, the lease was no arm’s length deal: the partnership got a substantial discount off the going price for such items. What was significant in that case was that the partners, by their arrangement, indicated that they meant to separate the lease from the venture as a whole, the partner from the partnership; in their own minds and contracts, the lease was real.
There is no reason why the public character of a role should be more important in malpractice cases than in product liability cases, that is, cases where an employee sues his employer on the theory that the employer not only furnished the employee the machine or whatever that injured him, but actually produced, sold, or leased it, and is therefore strictly liable in tort, in a dual capacity, for the defects of the product. If anything, public sales of the product should be regarded as more essential in products cases than public practice is in medical malpractice cases. In a products case, the injury, an element of the tort, occurs directly in the employment context; there is no second injury as in a malpractice case. Thus, if employees can recover from their employers on product liability claims even when there is no product distribution to the public at large, the liability, for negligent treatment, of an employer who provides medical services only for his employees becomes clearer.
Similarly, in Reed v. The Yaka (1963), 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349, another classic case for dual capacity, reaffirmed in Jackson v. Lykes Brothers Steamship Co. (1967), 386 U.S. 731, 18 L. Ed. 2d 488, 87 S. Ct. 1419, the court held a bareboat charterer liable on the warranty of seaworthiness to a longshoreman it employed directly instead of using a stevedoring company as was usual. There was no indication that anyone but employees worked on or near the vessel or could in fact be at risk from the unseaworthiness. It was enough that in legal principle the warranty did not depend on the employment but ran to all alike. The same can be said of the obligations of doctors.
In the present case, the different people involved had conflicting expectations. Caterpillar may well have felt that it was merely discharging its duties as employer as best it could. McCormick probably felt like a patient rather than an employee. If someone had asked what he was doing at the clinic, neither McCormick nor anyone else would have said, “working.” The doctors probably felt like doctors: they did not go to school all those years to become Caterpillar employees, and when strangers ask them what they do they probably do not say they are employees of Caterpillar. Since Caterpillar was not personally there, and can justly be held responsible for the image projected by its doctors, its view is less important than that of the other participants. On the whole, I believe the activities of the clinic are more aptly described as medicine than as employment, and would be so perceived by an observer on the spot.
Sound reasoning and the bulk of authority, both from this State and other jurisdictions, favor allowing the tort action McCormick sought to bring against his employer. I find this a stronger case for dual capacity than Smith. The majority ruling in this case seems to me a retreat from Smith. I would affirm the appellate court rather than retreat from Smith, and allow the suit to proceed.