Suburban Hospital, Inc. v. Kirson

RODOWSKY, Judge. Maryland Code (1991), Title 9 of the Labor and Employment Article (LE) is the Maryland Workers’ Compensation Act (the Act). LE § 9-509 in part provides: “(a) Employers. — Except as otherwise provided in this title, the liability of an employer under this title is exclusive. “(b) Covered employees and dependents.- — Except as otherwise provided in this title, the compensation provided under this title to a covered employee or the dependents of a covered employee is in place of any right of action against any person.” We granted certiorari in this action primarily to determine whether an employer-hospital enjoys the exclusivity defense under § 9-509 where the employer is sued by an employee for tort damages for personal injuries resulting from the negligent medical treatment of a work-related injury. The Court of Special Appeals, applying the “dual capacity” theory, denied the defense.

Suburban Hosp. v. Kirson, 128 Md.App. 533, 552 , 739 A.2d 875, 885 (1999). That court viewed the employer ¹⁴⁶ “in its capacity as an employer and ... in its capacity as a health care provider as discrete legal entities with no necessary relationship to each other.” Id. at 547 , 739 A.2d at 882 . In addition to the above issue of substantive law, the record in this case also reveals a failure to comply with the separate document requirement for the entry of judgment under Md. Rule 2-601. Nevertheless, we shall hold in Part II, infra, that there is appellate jurisdiction.

With respect to the merits of the principal question, we shall hold in Part IV.C, infra, that workers’ compensation is the employee’s exclusive remedy against the employer-hospital for the negligent care. I ■ The employer, Suburban Hospital, Inc. (Suburban), is a petitioner and cross-respondent in this Court. The employee, Phyllis R. Kirson (Kirson), is the respondent and cross-petitioner. Kirson fractured her right femur when, on August 6, 1993, she slipped and fell in the operating room at Suburban while she was working as a nurse.

She was immediately taken to the Suburban emergency room and then admitted to that hospital. The next day Kirson underwent surgical repair which involved the insertion of a metal plate and screws at the break point, just above the total prosthesis that had replaced Kirson’s right knee in 1991. On August 13, 1993, Kirson, while recuperating from the August 7 surgery, fell in her hospital room at Suburban. It is undisputed before us that the immediate cause of the fall of August 13 was the negligence of Aparangi Paul (Paul), a patient care technician who is a petitioner in this Court.

Nor is there any dispute over Suburban’s vicarious liability for the negligence of Paul if Suburban does not enjoy the exclusivity defense. At the time of the August 13 fall one of the cross-respondents, Mary Beth Smith (Smith), was the nurse assigned to Kirson, and the remaining cross-respondent, Mary Anderson (Anderson), was the charge nurse on duty. Their tort liability is disputed. ¹⁴⁷ Many complications followed Kirson’s falls. Suburban, a self-insurer for workers’ compensation, paid Kirson temporary total disability compensation from August 7, 1993, to May 10, 1995.

Following a hearing, the Workers’ Compensation Commission (the Commission), by an order dated November 29, 1996, found that Kirson had sustained an accidental injury arising out of and in the course of her employment on August 6, 1993. The Commission ordered that Suburban pay 129 weeks of permanent partial disability compensation and that the Subsequent Injury Fund then pay 146 weeks. The Commission ordered Suburban to pay all medical expenses. 1 The present tort action was filed on July 11, 1996, accompanied by a waiver of arbitration under the Health Claims Arbitration Act. It is sufficient for present purposes to consider that the defendants, as named in an amended complaint filed on August 6, 1996, were Suburban, Anderson, Smith, Paul, and one Carol Stephens (Stephens) who is not a party to this appeal.

Suburban first raised the exclusivity defense in a motion for summary judgment filed sixteen months before trial. Anderson and Smith joined in the motion, contending that they were entitled to the defense because of their supervisory positions. In opposition Kirson argued the possible lack of a causal connection between the August 6 and August 13 falls, and she also argued the dual capacity doctrine. The circuit court, uncertain whether any facts that might be in dispute were material, denied the motion. 2 ¹⁴⁸ About two weeks before trial Suburban renewed its motion for summary judgment on exclusivity grounds.

In essence it contended that the general facts that we have set forth above were the only material facts. Kirson again argued the absence of a causal connection between the fall of the thirteenth and that of the sixth, and she again argued dual capacity. In colloquy with counsel at that hearing the court, in part, observed: “The injury that [Kirson] suffered on August 13, it is clear to me, is a direct result — I mean, she is there being treated for the injury that occurred on August 6th. So, therefore, Suburban Hospital, as the employer — not as the hospital, but as the employer — benefits from the exclusivity provision of the [Act].” Observing that “even though [it had] a difficult time finding a material fact that would allow the hospital to remain in this lawsuit,” the circuit court denied the motion, saying, “I am going to let it go to the jury or at least we will start the jury trial with everybody in it.” At that same hearing Kirson moved in limine to prevent any mention of workers’ compensation, opening her argument by saying, “If they are going to defend this on the exclusivity doctrine — .” The court, however, interrupted and ruled, “That is a legal issue; that is not something that should be before the jury.” When Suburban then argued that it should be entitled to demonstrate that it had paid $186,000 in compensation, the court ruled that this evidence was barred by the ¹⁴⁹ collateral source rule.

The court stated, “I am not going to permit anything before the jury as to the amount of compensation that has been paid through the [Act].” Accordingly, the action went to trial before the jury as one involving a claim of negligently inflicted injury (August 13) superimposed on a pre-existing condition (the break in the femur of August 6). At trial Kirson gave the following description of the fall of August 13. Shortly after breakfast Paul and a nurse, whom Kirson believed to be Smith, responded to Kirson’s call button. Kirson wanted to use the bedside commode.

As she sat up at the edge of her bed, Kirson told the two caregivers that she was “ ‘a little light-headed.’ ” The two assisted Kirson to the commode and told Kirson to push the button when she was ready to return to bed and someone would return to assist her. After using the commode, Kirson again pushed the call button, and only Paul responded. Before Kirson stood up she told Paul, “ T still feel a little dizzy.’ ” Paul told Kirson to “ ‘wait a minute.’ ” From a corner of the hospital room Paul obtained a walker that had not been adjusted for Kirson’s use. Paul placed the walker directly in front of Kirson so that she could stand while using the walker for support.

When Kirson stood, Paul took the container out of the commode and started toward the bathroom to empty the container’s contents. When Paul was about six feet from Kirson, the latter exclaimed, “ ‘Oh, I feel dizzy.’ ” Kirson stated that she then reached for the walker, “but it was too high to ... support and it toppled, and I went and it went, and I began to scream.... ” Kirson’s principal orthopedic surgeon, Dr. Antoni B. Goral, testified as her medical expert. In the days following the fall of August 13 he had noted a progressive loss of fixation of the plate that had been inserted to mend the broken femur sustained in the August 6 fall. In order to correct this condition, that in his opinion was caused by the fall of August 13, revision surgery was required.

On August 26 the surgeon entered through the same incision line made in the open ¹⁵⁰ reduction of the broken femur. Dr. Goral moved the existing plate lower, toward the replacement knee, and drilled three new holes for screws. This procedure involved a risk of bursitis, but the risk was unavoidable. Kirson was discharged from Suburban on October 8,1993.

In February 1994 she was diagnosed with implant related bursitis. In Dr. Goral’s opinion the bursitis was caused by dropping the plate down close to the femur prominence which caused soft tissue to rub on the plate. He recommended removal of certain screws from the plate which was done on March 18, 1994. Cultures taken at that time from the site of the surgery were negative for any infection.

In September 1994 Dr. Goral again operated on Kirson to replace the artificial right knee in order to lessen an outward bowing. While removing the artificial knee he found an infection, later identified as a staph epidemitis infection. Dr. Goral could not proceed with inserting a new replacement knee. He filled the knee cavity with antibiotic cement and placed Kirson on a program of antibiotics to clear the infection.

When that was accomplished a new replacement knee was inserted on October 24, 1994. Kirson was discharged from the hospital in November. In Dr. Goral’s opinion the infection resulted from the operation of March 18, 1994, which was required by the bursitis caused by the August 26, 1993 operation, which, in turn, was necessitated by the August 13, 1993 fall. Dr. Goral opined that, but for the August 13 fall, Kirson could have returned to work as an operating room nurse in six to nine months after the August 6, Í993 fall, and that a reasonable period of physical therapy for the broken femur suffered on August 6 would have been three months from that date.

Based on this evidence Kirson argued to the jury that damages by way of lost income should be measured from the time when Kirson could have returned to work, had the fall of August 13 not occurred, to the time when she actually did return. Kirson also submitted that her medical expenses ¹⁵¹ should be measured by the cost of services rendered after August 13,1993, less the cost of such services that would have been rendered in any event in order to treat the injuries from the fall on August 6. The action was submitted to the jury on special interrogatories. Instructions to the jury included a direction to find against Suburban if any individual defendant were found to be negligent.

The jury found for Kirson against all of the defendants, other than Stephens, and awarded Kirson past medical expenses, past loss of earnings, and non-economic damages totaling $130,500. The defendants filed a number of post-judgment motions that are relevant to this certiorari review. Suburban, Anderson, and Smith moved for judgment notwithstanding the verdict (JNwV) based on exclusivity. The latter two also sought a JNwV for insufficiency of the evidence.

Suburban, joined by Paul, alternatively argued that the verdict should be reduced by the amount paid to Kirson under the Act. The circuit court granted Anderson’s JNwV motion and denied all other defense motions. Suburban, Smith, and Paul appealed to the Court of Special Appeals from the judgment against them, and Kirson cross appealed from the judgment in favor of Anderson. The Court of Special Appeals affirmed as to Suburban, Paul, and Anderson and reversed as to Smith, i.e., Suburban and Paul were liable and Anderson and Smith were not liable.

With respect to Suburban’s exclusivity defense, the court held that LE § 9-509 applied only to the work-related accidental injury of August 6. Suburban Hosp., 128 Md.App. at 544 , 739 A.2d at 881 . The court stated that “Suburban Hospital cannot remotely claim that it was a matter of undisputed fact that the hospital fall of August 13 and all of its sequellae were nothing but an aggravation of the work-related injury of August 6. Except for the logical fallacy of ‘Post hoc, ergo propter hoc,’ there was no indica ¹⁵² tion of any such connection.

There was, moreover, extensive evidence to the contrary.” Id. at 545 , 739 A.2d at 881 . Discussing the dual capacity theory the court principally cited cases from California, Ohio, and Illinois. The court concluded: “[Suburban] was involved in an employer-employee relationship with Kirson as far as any workers’ compensation claim for the August 6 fall was concerned. It was involved in a very different hospital-patient relationship with Kirson as far as the August 13 fall was concerned.” Id. at 552 , 739 A.2d at 885 .

The court also rejected Suburban’s (and Paul’s) “remittitur” argument, reasoning that, under the dual capacity theory, two separate events had occurred and the judgment against Suburban in one capacity could not be reduced by payments made by Suburban in a different capacity. Id. at 558-60 , 739 A.2d at 888-89 . Reviewing the sufficiency of the evidence as to the negligence of Smith, the Court of Special Appeals concluded that a JNwV should have been granted in her favor. Id. at 553-54 , 739 A.2d at 885-86 .

On Kirson’s cross appeal, the judgment in favor of Anderson was affirmed. Id. at 564-67 , 739 A.2d at 892-93 . Additional facts with respect to the role of these two nurses will be addressed in Parts V and VI, infra. Suburban petitioned this Court for a writ of certiorari asserting the exclusivity defense and, alternatively, the right to setoff against any judgment the amount of compensation and medicals paid under the Act.

Paul has petitioned us asserting that she is entitled to a “remittitur.” Kirson has cross petitioned challenging the judgments in favor of Anderson and Smith. We granted all of these petitions. On the merits Suburban contends that it was obligated under the Act to pay compensation for the injuries flowing from the fall of August'13 because those injuries resulted from malpractice in the treatment of the injury sustained in the August 6 fall. Kirson counters that the rule relied on by Suburban applies only if there is causation in fact and that ¹⁵³ there is a dispute of material fact whether the August 13 fall was physically caused by the injuries of August 6.

If Suburban is obligated to pay compensation for injuries resulting from the negligent treatment of a work-related accidental injury, then Suburban contends that it enjoys the exclusivity defense. Kirson, on the other hand, asserts that the dual capacity theory nevertheless permits the tort action. If Suburban enjoys no exclusivity defense as to injuries resulting from the negligent treatment of the work-related accidental injury of August 6, then Suburban contends that it is entitled to a reduction in the verdict by the amount of compensation and medical benefits that it paid under the Act. Kirson contends that the August 13 fall is a separate accident which does not give rise to a lien or subrogation claim for compensation paid for the August 6 fall.

Under our holdings in Parts III and IV.C, infra, we do not reach the latter issues. Finally, Kirson contends that Smith and Anderson were proven to be negligent by legally sufficient evidence. 3 II The question of appellate jurisdiction arises out of the following facts. As amended effective October 1, 1997, Maryland Rule 2-601(a) requires that “[e]ach judgment shall be set forth on a separate document.” Where, as here, the action is tried to a jury which renders a special verdict, “the court shall promptly review the form of the judgment presented and, if approved, sign it, and the clerk shall forthwith enter the judgment as approved and signed.” Id. Accordingly, we ¹⁵⁴ would expect to find a separate document substantially in the form set forth in the margin, but we do not. 4 The October 1997 changes to Rule 2-601 were made at the request of this Court to the Rules Committee that the Maryland rule be patterned on Fed.R.Civ.P. 58.

The language of Md. Rule 2-602(a), as adopted, is borrowed, with style changes, from Fed.R.Civ.P. 58. Byrum v. Horning, 360 Md. 23, 25-26 , 756 A.2d 560, 561 (2000). The purpose of the federal rule, according to the notes of the Advisory Committee on the Federal Rules of Civil Procedure, was to eliminate uncertainty as to when a purported entry of judgment was effective. Id. at 26-27 , 756 A.2d at 561 .

The law that has developed in the federal courts under Fed.R.Civ.P. 58 has established clearly that an appellate court, in order to preserve the right of appeal, may consider the separate document requirement to have been waived. See Bankers Trust Co. v. Mollis, 435 U.S. 381, 387-88 , 98 S.Ct. 1117, 1121 , 55 L.Ed.2d 357, 363 (1978) (per curiam). There the action apparently had been dismissed by the district court, but it failed to create “ ‘any document that look[ed] like a judgment.’ ” Id. at 382 , 98 S.Ct. at 1119 , 55 L.Ed.2d at 360 ¹⁵⁵ (quoting Mollis v. Federal Deposit Ins. Corp., 568 F.2d 824 , 827 n. 4 (2d Cir.1977)).

The Supreme Court assumed, without deciding, that the separate document requirement must be met in order for an appellate court to have jurisdiction over the matter. But, the Court continued by stating, “We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it.” Id. at 384, 98 S.Ct. at 1119-20 , 55 L.Ed.2d at 361 . The Court continued by stating the following: “The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered.

See United States v. Indrelunas, 411 U.S. 216, 220-222 , 93 S.Ct. 1562, 1564-1565 , 36 L.Ed.2d 202 , [206] (1973) [ (per curiam) ]. Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken.

Wheels would spin for no practical purpose.” Id. at 385, 98 S.Ct. at 1120 , 55 L.Ed.2d at 361-62 (footnotes omitted). The Court held that the federal court of appeals properly could proceed with the appeal because the district court clearly evinced its intent that the opinion and order from which the appeal was taken constituted the final decision in the case, a judgment of dismissal was recorded on the clerk’s docket, and neither party objected to the taking of the appeal in the absence of a separate document. Id. at 387-88 , 98 S.Ct. at 1121 , 55 L.Ed.2d at 363 . Appellate jurisdiction over the ¹⁵⁶ matter existed, and the parties had waived the separate document requirement.

Id. The federal courts of appeals uniformly have held that the separate document requirement has been waived where the district court clearly intended its order to be the final judgment in the matter, the appellee has not objected to the failure to comply with the separate document rule, and the clerk of the district court made an entry of judgment on the docket. See Cooper v. Salomon Bros. Inc., 1 F.3d 82, 86 (2d Cir.1993); Smith v. Massachusetts Dep’t of Correction, 936 F.2d 1390, 1395 (1st Cir.1991); Sanders v. Clemco Indus., 862 F.2d 161, 166-67 (8th Cir.1988); Simon v. City of Clute, 825 F.2d 940, 942 (5th Cir.1987); Vernon v. Heckler, 811 F.2d 1274, 1276-77 (9th Cir.1987); Diamond v. McKenzie, 770 F.2d 225, 231 (D.C.Cir.1985); Hanson v. Town of Flower Mound, 679 F.2d 497, 501 (5th Cir.1982).

We hold that the separate document requirement may be waived under Maryland Rule 2-601. Without undertaking to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland, we hold that there has been a waiver in the instant matter in which the Circuit Court for Montgomery County clearly intended the docket entries made by that court’s clerk, based upon the jury verdict, to be a final judgment and where no party has objected to the absence of a separate document. 5 This holding was foreshadowed by our decision in Byrum, 360 Md. 23 , 756 A.2d 560 , which presented the converse of the appellate jurisdiction issue present in this case. In Byrum , the appellee attempted to use waiver to eliminate the separate document requirement and, thereby, to defeat the appeal by ¹⁵⁷ having a docket entry serve as the entry of judgment so that the notice of appeal would not have been timely filed. Id. at 32 , 756 A.2d at 564 .

There we said: “We need not decide in the instant matter whether Bankers Trust has any application under Maryland Rule 2-601 ... inasmuch as Bankers Trust is distinguishable from the case at hand. Bankers Trust applied what [a respondent] calls ‘waiver’ in order to preserve the appeal. Here, [that respondent] argues waiver in an effort to eliminate the requirement of a separate document and thereby to defeat the appeal by having the docket entries of July 15 serve as the entry of judgment. With respect to circumstances analogous to those before us, the Court in Bankers Trust expressly reaffirmed the rule of United States v. Indrelu-nas, 411 U.S. 216 , 93 S.Ct. 1562 , 36 L.Ed.2d 202 (1973) (per curiam), according to which ‘the separate-document rule must be “mechanically applied” in determining whether an appeal is timely.’ Bankers Trust, 435 U.S. at 386 , 98 S.Ct. at 1120 , 55 L.Ed.2d at 362 .

Mechanical application of the separate document rule makes the Byrums’ appeal timely.” Id. at 32, 756 A.2d at 564-65 (emphasis added). Use of the waiver doctrine in the case sub judice fits squarely within the rationale of Bankers Trust as it preserves the right to appeal where no objection has been made and the trial court clearly intended for the docket entries to constitute a final judgment. Ill It is firmly established in Maryland law that the employer must pay compensation under the Act for the aggravation of a claimant’s medical condition due to medical malpractice in the treatment of a workplace injury. Mackin & Assocs. v. Hams, 342 Md. 1, 5 , 672 A.2d 1110, 1112 (1996) (“[C]omplications flowing directly from treatment of a compensable injury are covered by the Act, even if the complications result from negligent medical treatment.”); Young v. Hartford Accident & Indem.

Co., 303 Md. 182, 192 , 492 A.2d 1270, 1275 (1985); Sterry v. Bethlehem Steel Corp., 64 Md. App. 175, 190-91 , 494 A.2d 748, 756 (1985) (Wilner, J., dissent ¹⁵⁸ ing); Nazario v. Washington Adventist Hosp., Inc., 45 Md. App. 243, 246 , 412 A.2d 1271, 1273 , cert. denied, 288 Md. 740 . (1980) (“[I]t is universally held that a [Workers’] Compensation award includes any aggravation of an injury which may have occurred through a physician’s or hospital’s negligence.”). In the instant matter the undisputed medical evidence is that the August 13 fall aggravated the injury of August 6 in that the later fall loosened the metal plate that had been inserted above Kirson’s right knee. This, as described in the testimony of Dr. Goral, caused further aggravations and complications.

Under the above cases, the negligent care in the treatment of the August 6 injury makes the subsequent aggravations and complications, under the evidence, compensable under the Act as results of the August 6 accident that arose out of and in the course of Kirson's employment. Kirson, relying on cases that do not involve medical malpractice in the treatment of a compensable injury, argues that there must be causation in fact between the two accidents for the later one to be compensable. For example, in Mackin the claimant had suffered a compensable injury while in the employ of the respondent, but had left that employment by the time of a second accident that formed the basis for the compensation claim that was the subject of the reported case. The second accident occurred when the claimant slipped on ice and fell while walking to get a physical therapy treatment for the original injury.

We held that there was “ho legally sufficient nexus between the claimant’s occupational injury in 1989 and his subsequent fall in 1993.” Mackin, 342 Md. at 11 , 672 A.2d at 1115 . We announced “general agreement with the basic rule advocated by Professor Larson [1 Larson, The Law of Workmen’s Compensation § 13.13 nn. 41-7 (1993) ] — that a subsequent injury is compensable if it is the direct and material result of a compensable primary injury.” Id. at 7, 672 A.2d at 1113 . See also Unger & Mahon, Inc. v. Lidston, 177 Md. 265, 268 , 9 A.2d 604, 605-06 (1939) (jury question presented as to whether sharp pain in ankle, previously in ¹⁵⁹ jured at work, caused claimant to fall from outside steps at home, resulting in broken hip). In cases involving negligent medical treatment, however, in order for the subsequent injury to be compensable, it is necessary only to show that the injury directly resulted from improper treatment of the original compensable injury.

In order to recover compensation for the subsequent injury, it is not necessary, as Kirson contends, to split causation hairs. See Radermecher v. FMC Corp., 375 N.W.2d 809, 812 (Minn. 1985) (malignant melanomas compensable where causally related to prolonged exposure to ultraviolet light used in treatment of dermatitis resulting from working with hot wax vapors in chrome plating process); Shoemaker v. Workmen’s Compensation Appeal Bd., 145 Pa.Cmwlth. 667 , 604 A.2d 1145, 1146 (1992) (AIDS compensable where substantial evidence supported finding that it resulted from blood transfusions received during surgery in treatment of fractured pelvis, knee, and left leg incurred in work-related motor vehicle accident); American Filtrona Co. v. Hanford, 16 Va.App. 159 , 428 S.E.2d 511, 513 (1993) (hepatitis compensable if resulted from a blood transfusion necessitated by industrial accident). Kirson’s medical malpractice injury is sufficiently connected to the original compensable injury because the medical malpractice injury arose during the course of treatment of the original compensable injury. 6 ¹⁶⁰ TV A We turn then to whether the theory of dual capacity, as described and applied by the Court of Special Appeals, should be embraced as part of Maryland law. The subject of “dual capacity” seemingly is best to be approached by a survey of the legal landscape as seen through the eyes of the authors of 1 A. Larson, Larson’s Workers’ Compensation Law, Chs. 112 and 113 (2000 ed.) (Larson).

Larson rejects the dual capacity theory, eo nomine, because it has come to mean a single legal person acting in different capacities so that “a few courts have stretched the doctrine so far as to destroy employer immunity whenever there was, not a separate legal person, but merely a separate relationship or theory of liability.” Larson § 113.01[2], at 113-2. Larson states: ‘When one considers how many such added relations an employer might have in the course of a day’s work — as landowner, land occupier, products manufacturer, installer, modifier, vendor, bailor, repairman, vehicle owner, shipowner, doctor, hospital, health services provider, self-insurer, safety inspector — it is plain enough that this trend could go a long way toward demolishing the exclusive remedy principle.” Id. (emphasis added). To describe when immunity properly is not available Larson substitutes the term “dual persona.” “The choice of the term ‘persona’ ... is dictated by the literal language of the typical third-party statute, which usually defines a third party, in the first instance, as ‘a ¹⁶¹ person other than the employer.’ This is quite different from ‘a person acting in a capacity other than that of employer.’ The question is not one of activity or relationship — it is one of identity.

The Tennessee Supreme Court [McAlister v. Methodist Hosp. of Memphis, 550 S.W.2d 240, 246 (Tenn.1977) ], brushing aside all the fictitious sophistry of ‘dual capacity,’ nailed down this point with breathtaking simplicity. “ ‘The employer is the employer; not some person other than the employer. It is as simple as that.’ ” Id. at 113-3 (footnotes omitted). Illustrative of separate legal persons are (1) a natural person as an individual and that same person as a trustee or guardian and (2) a natural person as 100% owner of a corporation and the corporation. Larson § 113.01[2]-[3], at 113-4 to 113-6.

The line which the authors would draw to avoid the slippery slope of dual capacity is based on duty. “If the dual persona doctrine is to apply, it must be possible to say that the duty arose solely from the nonem-ployer persona, rather than the other way around. For only in such a case can the second persona be really distinct from the employer persona. In other words, it is not enough ... that the second persona impose additional duties. They must be totally separate from and unrelated to those of the employment.” Larson § 113.01[4], at 113-10.

Another exception to the exclusivity of workers’ compensation arises where there is a single person involved in two unrelated transactions with the employee. Larson calls this the “dual transaction” doctrine. Larson § 113.08, at 113-24.1 to 113-26. One illustration is that of the plaintiff who is a clerk in the defendant’s store.

On a day when the clerk is not working but is shopping in the store, the clerk is injured by the negligence of the clerk on duty. Larson considers that a tort action against the employer is maintainable. Id. at 113-25. The authors also posit the following as a second example: ¹⁶² “[SJuppose a nurse who works for the defendant hospital happens to be involved in a weekend accident while driving past the hospital, and is rushed to [the] hospital’s emergency room, where the alleged malpractice occurs.

Here again, no one would contend that her suit is barred. “The facts are not always this clear, but the commonest, example of this distinction is that involving an employer who undertakes to treat an employee as a private patient. When the case involves a purely private relation with no employment involvement, suit is usually not barred. “The fact that the nonoccupational illness manifests itself during working hours does not necessarily change the result, if it is clear,, as it was in the Pennsylvania case of Tatrai [v. Presbyterian Univ. Hasp., 497 Pa. 247 , 439 A.2d 1162 (1982) ] that the employee is being treated on exactly the same terms as any member of the public and is expected to pay in the same way for the service.... “All [of] this presupposes the complete absence of any employer involvement beyond the treatment that would have been given to any member of the public. If, for example, it is the employer’s policy to provide first aid or other care for even nonoccupational illnesses appearing during the workday, the result may be different.” Larson § 113.08, at 113-25 (footnotes omitted).

Within the confines of the arguments made to us, “dual capacity,” “dual persona,” and “dual transactions” cover the spectrum of theories which would avoid the exclusivity defense. The facts of the instant matter do not fall within either of Larson’s examples of dual transactions because Kirson suffered an accidental injury at work. Thus, the questions presented, in the terminology employed by Larson, is whether this Court should adopt the dual capacity theory, as described by the Court of Special Appeals, and, if we do not do so, whether the facts of this case satisfy the dual persona test proposed by Larson, namely, whether the duty violated by the employer which forms the basis for the third-party action is ¹⁶³ “totally separate from and unrelated to those of the employment.” Larson § 113.01[3]-[4], at 113-10. B In cases in which compensation exclusivity has been asserted by a health care provider in defense of a tort suit seeking damages for aggravation of a compensable injury, the decisions roughly fall into three classes.

One group applies the dual capacity theory, and a second group applies the defense. The third class, represented by New York cases, splits the baby, allowing recovery against an employer who provides health services to the general public but barring separate actions where the aggravating injury is caused in a health program open only to employees. 1 The seminal case applying dual capacity, Duprey v. Shane, 39 Cal.2d 781 , 249 P.2d 8 (1952), was relied upon by the Court of Special Appeals. Suburban Hosp., 128 Md.App. at 548 , 739 A.2d at 883 . The California court permitted an employee of a chiropractor to bring a malpractice action against her employer whose treatment aggravated the original compensable injury.

Duprey, 249 P.2d at 11-13 . Set forth below is the California Supreme Court’s rationale: “It is our conclusion that when the employing doctor elected to treat the industrial injury, the doctor assumed the responsibilities that any doctor would have assumed had he been called in on the case. As will be pointed out, such third party doctor can be sued for malpractice resulting in an aggravation of an industrial injury, or a new injury. It follows that the employer-doctor may be sued for malpractice when he elects to treat the industrial injury.... “It is equally true, and admitted by all here concerned, that, in tort cases generally, when a person is injured by a tortious act and this injury is aggravated by the negligence of the attending physician, such aggravation of the injury is within the scope of the risk created by the original tortious act.

This rule applies to workmen’s compensation cases.” ¹⁶⁴ Id. at 13 (citations omitted). That court said that the doctor had a “dual legal personality,” that of a doctor and that of an employer. Id. at 15. In D'Angona v. County of Los Angeles, 27 Cal.3d 661 , 166 Cal.Rptr. 177 , 613 P.2d 238 (1980) (in bank), recovery in tort against the employer-hospital was allowed for negligent aggravation of a work-related disease.

D'Angona, 166 Cal.Rptr. 177 , 613 P.2d at 242-44 . The court stated: “In treating plaintiffs disease the county owed her a duty separate and distinct from its duty as her employer, and this was the duty to provide medical care free of negligence — the same duty that it owes to any member of the public who becomes a patient at its hospital. The fact that the county allegedly breached this obligation by employing negligent doctors rather than by some other purportedly negligent act did not absolve it of its responsibility to assure that the medical care which it directly undertook to provide was performed without negligence.” Id. 166 Cal.Rptr. 177 , 613 P.2d at 243-44 . 7 DAngona is one of the decisions by the Supreme Court of California in which, according to Larson, that court “did much ¹⁶⁵ more than its share to extend the dual capacity doctrine beyond all justifiable limits.” Larson § 112.02[l][c], at 112-10 (footnote omitted). Those authors submit that exclusivity applied with even greater force in D’Angona than in Duprey because of the crucial difference described below. “The duty to the employee which the employer violated by allegedly furnishing a negligent doctor was not the duty of doctor to patient, but the duty of employer to employee to furnish proper medical care.

The persona that employed the plaintiff is the same legal persona that owed plaintiff the duty to supply proper medical services. Again, there is simply no way two legal persons can be constructed out of one employer in this situation.” Larson § 112.02[l][c], at 112-11. Larson identifies Ohio with California as the “only two states” in which dual capacity has “flourished.” Larson § 118.01[4], at 113-6. Ohio adopted the rationale of the California cases in Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488, 492 (1978).

In doing so, the Ohio Supreme Court stated, “We find no compelling reason why an action [for malpractice] should be less viable merely because the traditional obligations and duties of the tortfeasor [hospital] spring from the extra-relational capacity of the employer, rather than a third party.” Arthur H. Thomas Co., 378 N.E.2d at 492 . Since that decision, the Ohio court has declined to apply dual capacity in other contexts. See Freese v. Consolidated Rail Corp., 4 Ohio St.3d 5, 445 N.E.2d 1110, 1114-15 (1983) (city police officer, injured while performing his duties as a motorcycle officer which required him to travel the city’s streets, barred from suing city in tort for failing to keep streets in proper repair); Bakonyi v. Ralston Purina Co., 17 Ohio St.3d 154 , 478 N.E.2d 241, 244 (1985) (holding employee’s strict liability action against employer for workplace injury was barred by the exclusivity provision of Ohio’s Workers’ Compensation Act). Courts in several other jurisdictions have applied the dual capacity theory in medical malpractice cases.

In Wright v. District Court for the County of Jefferson, 661 P.2d 1167 ¹⁶⁶ (Colo.1988) (en banc), the Colorado Supreme Court disallowed co-employee immunity under the Colorado workers’ compensation act in a suit against a doctor who was employed by Adolph Coors Company to render medical services to employees. The Colorado court reasoned that the statute did not require Coors to maintain a clinic. “When an employer voluntarily undertakes to directly render medical treatment to its injured employees, it assumes a function which is not required by the Act and, what is most significant,.which is not an integral part of its business.” Id. at 1169 . See also Tatum v. Medical Univ. of South Carolina, 335 S.C. 499 , 517 S.E.2d 706, 712 (S.CApp.), cert. granted (S.C. Nov. 5, 1999) (concluding that the “secondary” relationship of hospital and patient “ ‘created obligations to the employee independent of its obligations as employer,’ and the secondary relationship was so ‘completely independent as to create a separate legal person’ ”); Dalton v. Community Gen. Hosp., 275 Ill.App.3d 73 , 211 Ill.Dec. 433 , 655 N.E.2d 462, 465 , cert. denied (Ill.

Oct. 13, 1995) (“In this second capacity as a medical provider [treating a compensable injury], the hospital’s duties were unrelated to those obligations flowing from its role as plaintiffs employer”). But see Mufich v. Heisler Green Chem. Co., 121 Ill.App.3d 958 , 77 Ill.Dec. 426 , 460 N.E.2d 482 (1984), discussed infra; and see Weber v. Armco, Inc., 663 P.2d 1221 , 1226 n. 16 (Okla.1983) (citing Duprey v. Shane, supra, as a case where dual-capacity was appropriately applied but refusing to apply that theory to permit the product liability suit before it). Jefferson Med.

College Hosp. v. Savage, 7 Pa.Cmwlth. 35 , 298 A.2d 694 (1972), may be viewed as applying the dual capacity theory, although the decision is equally explainable as one drawing a distinction between the original and the subsequent injuries. There, the work-related injury was a fracture of the left hip. While the claimant was a patient in the employer’s hospital, her left hip was dislocated from the socket, on two occasions, due to the negligence of hospital employees. On each occasion the fracture was not damaged, and it healed completely.

The dislocations “were new and independent injuries” that did not occur in the course of employment. Savage, 298 A.2d at 696 . The Commonwealth ¹⁶⁷ Court viewed the outcome as a natural extension of Tatrai, 497 Pa. 247 , 439 A.2d 1162 , in which the Supreme Court of Pennsylvania permitted an employee to sue her employer, a hospital, for injuries she sustained as a patient while being treated in the employer’s emergency room for a non-work related illness that manifested itself during the employee’s normal working hours. Id. at 1163. 2 The apparent numerical weight of authority among jurisdictions considering the problem holds that a compensation act provides the exclusive remedy for the aggravation of a com-pensable injury by the medical malpractice of a co-employee.

Typically, the compensation act in the cases reviewed below confers immunity on co-employees as well as on employers. A review of the law concerning the dual capacity theory in a medical malpractice context was recently undertaken by the Texas Supreme Court. Payne v. Galen Hosp. Corp., 28 S.W.3d 15 (Tex.2000).

In that case the hospital’s pharmacy had negligently filled prescriptions for medication to treat the work-related back pain of a nurse who was continuing to work and who was not a patient admitted to the hospital. Id. at lb-17. The pharmacy did not dispense prescriptions to the general public, nor to hospital employees, unless they had been injured on the job. Under those facts the court held that dual capacity could not apply.

The court concluded that “[djrugs prescribed for on-the-job injuries are considered part of an employee’s treatment under the Act” so that compensation was the exclusive remedy. Id. at 18 . In a footnote supported by many citations, and after stating that the intermediate appellate courts in Texas had rejected dual capacity, the court observed: “The majority of other