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Mcneil v. Diffenbaugh





APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.


Plaintiff appeals from orders of the trial court striking and dismissing certain counts of a multicount complaint. On appeal, he presents these issues for review that: (1) the complaint states a cause of action against the company physician for malpractice in failing to diagnose and treat a condition not related to an accident arising out of and in the course of plaintiff's employment; and (2) the complaint states a cause of action on behalf of a minor son for a parental loss of consortium action. We affirm with the pertinent facts following.

Plaintiff filed a multicount negligence action alleging that on September 24, 1977, he was lawfully performing his duties for his employer, Montgomery Ward & Company Inc. (Ward), when he slipped and injured his back while unloading a semi-trailer owned by defendant McNeil Teaming Company, Inc.

The plaintiff alleges that following the accident, he came under the care of Dr. Willis G. Diffenbaugh, a physician and fellow employee at the Ward's Medical Facility. In the course of treatment by Dr. Diffenbaugh for his injury, plaintiff alleges that Dr. Diffenbaugh failed to diagnose or treat an existing tumor in the same "upper mid-back" region as the injury, and failed to diagnose "multiple myeloma in his back." The complaint also alleges that plaintiff was placed under the care of defendant Dr. Fernando Pascual at South Chicago Community Hospital for diagnosis and treatment of the injury arising from the September 24, 1977, incident. Dr. Pascual and the hospital staff also failed to diagnose the tumor and the multiple myeloma condition. Plaintiff now is paralyzed as a result of the myeloma and terminally ill. On behalf of his minor son, plaintiff alleges that his child was deprived of his support and parental care and companionship.

The trial court dismissed counts I, II and V of the complaint as to Dr. Diffenbaugh and dismissed all counts in which plaintiff sued as father and next friend of his minor son. This appeal follows.


Plaintiff asserts that the complaint stated a cause of action against the company physician which was not barred by the exclusive remedy provision of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138 et seq.).

The Workmen's Compensation Act provides in pertinent part that:

"No common law or statutory right to recover damages from the employer, his insurer * * * or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him * * * or any one otherwise entitled to recover damages for such injury." (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).)

Thus, a common law action by one employee against a negligent co-employee, both of whom are covered by the Act, is barred by this section. O'Brien v. Rautenbush (1956), 10 Ill.2d 167, 139 N.E.2d 222.

• 1 It is plaintiff's contention that his cancer was a pre-existing condition which did not occur while he was engaged in the course of his employment; but his claim is based upon a wholly independent tort of medical malpractice for failing to diagnose the malignant tumor on his back while treating the back injury. It is the status of the person injured at the time of the injury, not the nature or source of the injury, that determines the exclusive application of the Act. (Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App.3d 331, 404 N.E.2d 1039.) It is undisputed that at the time of plaintiff's back injury he was an employee of Ward performing his lawful duties and that he came under co-employee Diffenbaugh's care for treatment of this injury. Diffenbaugh's "negligence" in failing to diagnose plaintiff's cancer "arose out of" and "in the course of" both their employment at Ward. "In the course of employment" relates to the time, place and circumstances of the injury, while "arising out of the employment" refers to the requisite causal connection between the injury and the employment. (Martin v. Kralis Poultry Co. (1973), 12 Ill. App.3d 453, 297 N.E.2d 610.) Thus, the exclusiveness of the Act precludes a common law action for damages by an employee against a co-employee based on the latter's negligence during the course of their employment. Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 408 N.E.2d 198.

Moreover, the Act applies to aggravation of an injury caused by medical treatment. (See Komel v. Commonwealth Edison Co. (1977), 56 Ill. App.3d 967, 372 N.E.2d 842, where plaintiff argued that his back injury which had been aggravated by the negligent medical treatment of a co-employee physician was not incurred while he was performing his duties as an employee within the meaning of section 5(a) of the Act.) Similarly, in Collier v. Wagner Castings Co., our supreme court has upheld the application of the Act to intentionally inflicted injuries by co-employees if they arose out of and in the course of employment.

The situation presented here is very similar to a New York Workmen's Compensation action, Liantonio v. Baum (Sup. Ct. 1977), 91 Misc.2d 433, 398 N.Y.S.2d 111, order vacated on other grounds (Sup. Ct. 1978), 95 Misc.2d 636, 408 N.Y.S.2d 257. *fn1 In this case, plaintiff was seen by a co-employee physician for pain in his right shoulder. The diagnosis was "strained muscle, right arm"; however after plaintiff underwent surgery a few months later, the pathological report "revealed a large cell tumor in plaintiff's right humerus." Plaintiff alleged there, as plaintiff in the instant case alleges, negligence on the part of the physician for failing to detect the tumor. He also argued that his action was not precluded by the Workmen's Compensation Act in that the tumor did not come about as a result of his employment activities. The New York court found that the misdiagnosis of plaintiff's pre-existing condition and defendant's failure to properly treat plaintiff was incidental to and arose out of his employment. Thus, the injury was governed by the Workmen's Compensation Act, which prohibited plaintiff's action for malpractice.

• 2 We are likewise compelled to conclude that plaintiff's injury in the instant case is a compensable injury under the Act and he is precluded from asserting ...

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