The majority opinion in this case amounts to a very material and substantial amendment to the Workmen's Compensation Law. It amends secs. 43-1107, 43-1108, and 43-1109, by opening the door to actions for alleged negligence against contract hospital associations and contract doctors who may be employed to treat workmen; converts them into "third persons" (sec. 43-1004, I. C. A.) under the statute and converts a physician, who is employer, into a "third party" subject to common law actions on charges of negligence in treating his own employees. It brings back into the administration of the Workmen's Compensation Law the old common law *Page 667 problems of negligence which the statute intended to out-law and which have been held time and again by this court as nolonger issues in compensation cases.. (Sec. 43-902, I. C. A.)
It is conceded that appellant sustained an injury as the result of an accident which occurred while appellant was engaged in the course of his employment. He went to the hospital designated by the contract doctors and was by them treated. The accident brought these doctors into the case. Under this hospital contract, appellant was paying $1.00 per month as fee for medical and hospital service and, under the statute (sec. 43-1108), the hospital took over and assumed the duties of the employer to furnish medical and surgical service. (Sec. 43-1107.) While thus in the hospital under treatment for an industrial injury, he was an employee of the master.
According to the complaint, the doctors furnished by the hospital under this contract attempted treatment and instead of furnishing skillful and competent treatment, they rendered careless and negligent treatment to the injury and damage of appellant. It seems too plain for reasonable debate, that these doctors received appellant for treatment under this hospital contract and rendered their service thereunder; that they received appellant solely and only because of his having met with an accident while in the service of the employer; and that the acts of negligence charged were committed, if at all, as a result and sequence of the employment and accidental injury incident thereto.
Now that these doctors received the employee as the agent of the employer and in his place and stead, just when and how do they become "third persons" and therefore excluded from the operation of the compensation law? Just how and by what process of reasoning can it be said, that if they commit an act of negligence, such act removes the treatment or malpractice from the operation of the compensation law? Secs. 43-1108 and43-1109 specifically provide for such contracts and waiver of the requirements of sec. 43-1107.
In Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249, this court had under consideration the construction and application of secs. 43-1107, 43-1108, 43-1109, 43-902, and 43-1413, I. C. A., as related to the rights of an employee and the jurisdiction of the board. Among other things, this court said: *Page 668
"Appellants urge the board had no jurisdiction to order this reimbursement and that respondent having waived the provisions of sec. 43-1107, I. C. A., any relief under sec. 43-1108, I. C. A., must be had in an independent action as for breach of contract. Having waived sec. 43-1107, I. C. A., respondent's rights are to be measured under sec. 43-1108. . . .
"Section 43-1108 recognizes the right of the employee and employer to, by agreement, enter into such arrangement, which both by reason of the general law theretofore applicable to such agreements and the evident purpose and effect of sec.43-1109, I. C. A., contemplates redress to the employee for breach of such agreement.
"Any question arising under such agreements are, however, questions under the act because the act grants the right to make such contract; in other words, if sec. 43-1107 had been the only statute, no such agreement as authorized by sec.43-1108 could have been made because of the mandatory and exclusive language of sec. 43-1107 and similar language in regard to other features as secs. 43-1103 [43-1003] and43-1006, I. C. A.
"The language in sec. 43-902 is sufficiently broad to include hospital contracts and rights and liabilities thereunder as being under the jurisdiction, in the first instance, of the Industrial Accident Board and such has been held not unconstitutional as infringing or contrary to art. 2, sec. 1, or art. 5, sec. 2; 71 C. J. 290, sec. 35.
"The legislature has given the board jurisdiction as an investigating and fact finding administrative board of all questions, not otherwise settled, arising under and from the act, sec. 43-1413.
"The question of compliance by the employer and his contract physician or hospital is under the supervision of the board as to 'services and treatment' which must mean the kind of services and treatment, i. e., competent or negligent, adequateor inadequate, and if the board has supervision of the servicesand treatment, wrongful neglect or refusal to give any is asmuch included in such supervision as negligent treatment, and sec. 43-1109 requires a bond to be given and filed with the board, to be approved by it, guaranteeing that it will'faithfully furnish' such treatment. Wrongfully refusing any care would certainly not be 'faithfully furnishing.' To say that the board has jurisdiction *Page 669 to determine whether treatment given is faithful performance but not to determine whether treatment should be given at all, which depends solely upon whether there was a compensable accidental injury, which question concededly the board alone has jurisdiction over, is a non sequitur." (Italics supplied.)
Sarber v. Aetna Life Insurance Co., 23 Fed. (2d) 434, is very much in point here on its facts. There the U.S. Circuit Court of Appeals for the Ninth Circuit was considering the employee's right of action against the insurance carrier, where the carrier had assumed and taken over the duty of furnishing medical and surgical aid to the employee. In the course of that opinion, Judge Rudkin said:
"Under the great weight of authority the employer is liable for all legitimate consequences following an accident, including unskillfulness or error of judgment of the physician furnished as required, and the employee is entitled to recover under the schedule of compensation for the extent of his disability, based on the ultimate result of the accident, regardless of the fact that the disability has been aggravated and increased by the intervening negligence or carelessness of the employer's selected physician. (Drengwitz v. Lincoln Coal Brick Co., 317 Ill. 302, 148 N.E. 79, 39 A.L.R. 1270; Pawlakv. Hayes, 162 Wis. 503, 156 N.W. 464, L.R.A. 1917A, 392;Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719; KirbyLumber Co. v. Ellison, (Tex.Civ.App.) 270 S.W. 920; Ross v.Erickson Const. Co., 89 Wn. 634, 155 P. 153, L.R.A. 1916F, 319; Smith v. Missouri K. T. Ry. Co., 76 Okl. 303, 185 P. 70;Booth Flinn v. Cook, 79 Okl. 280, 193 P. 36.) The rule is the same in common law actions for negligence. See Hooyman v.Reeve, 168 Wis. 420, 170 N.W. 282, and cases above cited.
"For these reasons, we are of opinion that the original accident was the proximate cause of the damages claimed in this action, and the state Compensation Act provides what the Legislature has deemed just and adequate compensation for all such injuries. If we are correct in this conclusion, there is little room to doubt that the remedy thus provided is exclusive of all other remedies, common law or statutory, as between the employee, on the one hand, and the employer and the insurance carrier, on the other, and that the exclusive provisions of the Compensation Act *Page 670 cannot be evaded by bringing an action in some other form or under some other name."
The exact question involved in the case before us was involved in Roman v. Smith, 42 Fed. (2d) 931, in which Federal Judge Cavanah cited and followed the foregoing from Judge Rudkin and said, inter alia:
"The inquiry here is, Was the injury for which plaintiff is seeking compensation so related to and connected with the injury he received by reason of the accident as to authorize an award under the Compensation Act, and, if so, is the remedy thus provided exclusive of all other remedies? It is evident from a reading of the Idaho Workmen's Compensation Act that the Legislature intended to withdraw from private controversy and insure relief for injured workmen regardless of the question of fault and to the exclusion of every other remedy, except as provided by sec. 6220, C. S. Idaho [sec. 43-1004, I. C. A.], . . .
"An employee may recover under the act compensation for a new injury or an aggravation of his original injury, resulting from surgical or medical treatment, when there is no intervening independent cause to break the chain of causation between the new injury and the original injury, and this rule seems to apply even where the disability has been increased by the intervening carelessness of the employer's selected physician.It is now recognized that surgical treatment is an incident toevery case of injury, and, where a workman meets with anaccident and is taken to a hospital and placed under the careof the employer's physician, he is, under the law, still in thecourse of his employment." (Italics supplied.)
This brings me to a consideration of the case of Baker v.Wycoff, 79 P.2d 77, chiefly relied upon by the majority opinion. I do not think this case supports the contention for which it is cited. That opinion is predicated on the provisions of sec. 42-1-58, R. S. 1933 (Utah Code), which, while it differs considerably in verbiage, is in effect substantially the same as our sec. 43-1004, I. C. A. That was an action against the doctor for damages for negligence in treating an injured workman. The court said:
"The first inquiry is whether the negligence of the physician is an injury for which compensation is payable under the statute. The answer must be in the affirmative, as it seems well settled that, where the chain of causation between *Page 671 an accidental injury and the ultimate disability remains unbroken, an injured employee is entitled to statutory compensation for the ultimate injury resulting from the accidental injury, though the injury has been aggravated by intervening malpractice. The treatment of the original injuryby a physician is within the chain of causation." (Italics supplied)
From thence the court proceeded to discuss, analyze, and consider cases from other states and finally concluded that the physician, who treated the workman, was a "third person" within the provision and meaning of the statute above referred to. The line of reasoning followed by the opinion in that respect is difficult to follow but it should be remembered that the court was nowhere considering, or called upon to consider, the provisions of a statute similar to our secs. 43-1108 and43-1109; and, so far as I am able to discover, Utah has no such provisions in its Workmen's Compensation Act. So, the case chiefly relied upon as authority here wholly fails to take into consideration the decisive provisions of our statutes (sec.43-1108 and 43-1109.) Nor does it take into consideration any statute comparable to our sec. 43-902, which "declares thatall phases of the premises are withdrawn from privatecontroversy, and sure and certain relief for injured workmen and their families and dependents is hereby provided regardlessof questions of fault and to the exclusion of every otherremedy." (Italics supplied.)
A careful examination of the authorities fails to disclose any case decided under statutes, like or similar to our secs.43-902, 43-1107, 43-1108, and 43-1109, that sustain the holding of the majority opinion herein. To the contrary, are the two Federal cases above cited, of which the Roman case is under our statute.
By this decision the court is throwing open the flood gates of litigation in all hospital and medical attendance contracts wherever and whenever negligence is alleged.
I dissent.
Holden, C.J., concurs in this dissent. *Page 672
ON REHEARING July 11, 1944