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Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

Workers Compensation Law Bars Malpractice Action Company Doctor

by Attorney Frank E. Reardon

June 1991

            In a case of first impression, a Massachusetts Superior Court justice recently granted summary judgment for an employer who had been sued by a former employee because its company doctor allegedly negligently failed to diagnose the employee's cancer during a routine physical examination.  In barring the malpractice action, the court ruled that the state's workers' compensation law was the exclusive remedy for the employee, since the employee's injuries resulted from an examination which occurred in the scope of employment.  Though the precedential value of the case is limited because it was decided by a superior court, and not the Supreme Judicial Court of Massachusetts, the state's highest court, the majority of legal experts who have reviewed the decision agree that case law in other states supports the decision.  Most experts expect the decision to be upheld, even if the plaintiff pursues an appeal.

            Plaintiff Lois Bennett, the widow of William J. Bennett, brought a wrongful death action against Procter & Gamble, her late husband's employer, and its company doctor, alleging that the physician failed to diagnose prostrate cancer during a routine physical examination conducted pursuant to company policy in 1986.  Mr. Bennett was employed by Proctor & Gamble at its Quincy, Massachusetts plaint from 1951 until his death in October, 1987.  In April, 1983, Mr. Bennett was examined by the company doctor at Proctor & Gamble's plant's medical offices.  The doctor did not perform a rectal examination, which is commonly used to detect prostate problems.  Several six months after the exam, Mr. Bennett's cancer was diagnosed, and less than one year after that diagnosis, he died.

            In a nine page decision, the court wrote of the broad scope of Massachusetts' workers' compensation law, and the broad application of its exclusivity provisions.  In this particular case, wrote the court, the claims against the company are barred as a matter of law "because [Mr.] Bennett's injury and death arose out of and in the course of his employment."  It is "immaterial," stated the court, that Mr. Bennett's medical condition was "not directly related with his employment."  It was enough for the court that the allegedly negligent physical examination was conducted as part of the employer's health and safety program.  Mr. Bennett's injuries were, in the court's view, sustained while he was occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment.  THe court further noted that the workers' compensation statute bars lawsuits even in cases wherein an employee is injured while on the employer's premises but not actually performing his or her job function.  The court rejected the plaintiff's argument that because the doctor treated employees, including Mr. Bennett, for both job-related and non-job-related injuries, any malpractice was outside the employment context.

            It is important to note that the court did not grant summary judgment for the physician himself.  The court's ruling was limited to the employer, Procter & Gamble.  Had the physician been a Procter & Gamble employee, and not an independent contractor, then the court may very well have granted summary judgment for him, based on similar rulings by other courts in other jurisdictions.  That possibility, however, is a matter of speculation; no Massachusetts court has ever so ruled.

            This case marks a judicial first for Massachusetts, but it is by no means unique.  In fact, it reflects a trend.  The court itself cited "the clear wieght of authority" elsewhere favoring a holding that an employee's action against an employer for inujries sustained as a result of ;the conduct of an company doctor is barred by workers compensation law.