Appeal from the Circuit Court of Cook County; the Hon. Lester
D. Foreman, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
This cause is before us by virtue of our granting of defendant Henrotin Hospital's application for leave to appeal pursuant to Illinois Supreme Court Rule 308(a) (87 Ill.2d R. 308(a)).
Plaintiff Joseph Mufich filed a multicount complaint against several defendants, count V of which was directed against the hospital, plaintiff's employer. In his complaint, plaintiff alleged that on December 28, 1981, while in the course of his employment as an engineer at the hospital he injured his foot while pouring, cleaning or inspecting a chemical container which contained a chemical manufactured by another defendant and which had been sold and distributed to the hospital by that defendant. On December 30, 1981, plaintiff went to the emergency room facility at the hospital for medical care or treatment and was there negligently treated by emergency room personnel. As a proximate result of the negligence he suffered personal injuries for which the hospital was liable.
Plaintiff also filed a claim under the Workers' Compensation Act.
The hospital moved for dismissal of the action (count V) under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619) because section 5(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a)) provides that an injured employee's exclusive remedy against his employer for injuries sustained in the line of duty as an employee is solely under the provisions of the Workers' Compensation Act. The trial judge denied the motion to dismiss but, under Supreme Court Rule 308, entered the requisite order identifying the question of law involved as "whether an employee may maintain a cause of action at common law against his employer/hospital for medical malpractice in the treatment of a work-related injury."
In denying the hospital's motion to dismiss, the trial judge held that this was a situation in which the dual-capacity doctrine applied, that is, when plaintiff was treated at the hospital the relationship between him and the hospital was that of patient and hospital and not that of employee and employer. We disagree.
• 1, 2 Section 5(a) of the Workers' Compensation Act provides (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a)):
"No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of 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 any one wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury."
Section 11 of the Act provides (Ill. Rev. Stat. 1981, ch. 48, par. 138.11):
"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act."
Section 8(a) (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)) requires that an employer provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.
In McCormick v. Caterpillar Tractor Co. (1981), 85 Ill.2d 352, 423 N.E.2d 876, plaintiff was injured during the course of his employment at the Caterpillar Tractor Company and was treated at the plant at various times by licensed physicians employed by Caterpillar on a full-time basis. After filing a claim and receiving an award under the Workers' Compensation Act, he sued Caterpillar and the doctors for alleged negligence in the diagnosis and treatment of his injury. The trial court dismissed as to Caterpillar and one doctor and entered summary judgment in favor of the other doctors. The appellate court, one judge dissenting (McCormick v. Caterpillar Tractor Co. (1980), 82 Ill. App.3d 77 (Webber, J., concurring in part and dissenting in part)), held that section 5(a), the exclusive remedy provision of the Compensation Act, did not bar common law tort action against Caterpillar because, by furnishing medical services to its employees directly rather than having them provided at outside facilities by private medical personnel, Caterpillar had subjected itself to tort liability under the "dual-capacity" doctrine. The supreme court, with one judge dissenting, reversed the appellate court's holding that Caterpillar could not be sued under the dual-capacity doctrine.
"The question for us is whether an employee whose injury arose out of and in the course of employment is barred by the exclusive-remedy provision of the Workmen's Compensation Act from recovering damages in a negligence action against the employer-company for aggravated injuries sustained in medical treatment by employees of ...