Nation v. Certainteed Corp.

Opinion

EVANS, J.

Plaintiff appeals from the judgment dismissing her second amended complaint after the court sustained the demurrer of her employer, Certainteed Corporation (Certainteed) and its compensation carrier, Travelers Insurance (Travelers)

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without leave to amend.

In yet another variation on an old theme, plaintiff attempts to hold her employer and its insurance carrier responsible in general tort damages for the asserted aggravation of her industrial injuries by John George, M.D., the treating physician. She contends that unless the proceeding against them is permitted, she will be without a remedy for the doctor’s negligence. The California authorities on the subject compel rejection of her contention.

On October 1, 1975, plaintiff incurred a work-related injuiy. Two days later, Certainteed referred her to Dr. George for treatment as required by the workers’ compensation law (Lab. Code, § 3850 et seq.); his name had > been selected from a list maintained by Travelers for referral purposes. After several months of treatment by Dr. George plaintiff became dissatisfied, and on March 16, 1976, secured the services of another physician; she thereafter served Dr. George with a notice of intention to sue for professional negligence, pursuant to Code of Civil Procedure

[816]

section 364. Plaintiff thereafter filed the present action against Dr. George, Certainteed, and Travelers, and attempted'to assert liability against defendants by alleging (1) failure of Certainteed and Travelers to ascertain the professional competency of Dr. George; (2) failure of Certainteed and Travelers to determine whether Dr. George had medical malpractice insurance; and (3) that Certainteed and Travelers should have known that Dr. George was incompetent. After plaintiff filed her second amended complaint, Certainteed and Travelers demurred specially, alleging ambiguity, and generally, for failure to state a cause of action. Their contention that plaintiff’s exclusive remedy was in workers’ compensation proceedings was upheld and the general demurrer was sustained without leave to amend.

Plaintiff’s contention is that an employee’s remedy for aggravation of an industrial injuiy is not confined to a workers’ compensation proceeding when the employer and its compensation carrier refer the worker to a physician who treats the worker negligently.