E-Newsletter

Work-Related Injury or Illness Aggravated by Medical Malpractice

In the US, the state workers' compensation system provides the exclusive remedy for work-related injury or sickness under normal circumstances, providing relatively swift and certain monetary compensation in exchange for waiver of a lawsuit against the employer. However, the process can become complicated when the original work injury is aggravated by the negligence or malpractice of the treating doctor or other treating medical professional.

Variable State Law

The vehicle for the employee's recovery for the worsening of the injury by the doctor's action or inaction varies extensively among the various states. Statutes and case law differ widely both from state to state and depending on the individual situations. If you are facing this complex legal question, it can be important to get advice from an experienced workers' compensation attorney in order to preserve and pursue your legal rights.

The Basic Problem

In the usual scenario, the employee is injured or sickened at work and goes to a doctor for treatment. The physician treats the worker negligently or without adhering to the appropriate standard of care, exacerbating the original injury. The issue is whether the additional harm from the malpractice should be covered by workers' compensation or whether the worker should bring a lawsuit against the medical professional for the malpractice, or both.

Different Approaches

Most states view the exacerbation of the original injury by the malpractice as a natural extension of the original injury and therefore covered by workers' compensation. This view sees the original injury as the cause of the malpractice because the deficient medical treatment would not have happened without the original injury; the exacerbation arises out of and in the course of employment. Some states with this philosophy only allow workers' compensation to cover the malpractice and not a lawsuit, extending the idea that workers' compensation is the exclusive remedy for a work injury to the malpractice suit.

Some states recognize the right of a worker to sue third parties that contributed to the injury; the doctor may be seen as such a third party subject to suit. Some of these states require the worker to choose between workers' comp and a malpractice suit for the exacerbation; others allow both workers' comp and a lawsuit. Often where both are allowed, if the lawsuit is successful the employer or its insurer will have the right to reimbursement for workers' comp already paid.

Yet another view allows the employer or its insurance carrier, instead of the worker, to sue the doctor for malpractice if the workers' compensation has already been paid for the exacerbation. Some states allow the employer or insurer to waive this right to sue for malpractice, returning it to the worker.

A Common Complication

A further complication of the issue occurs when the treating doctor is somehow affiliated with the employer. Common examples are company clinics or hospital employees injured on the job and then treated by their employers as patients. Some states bar malpractice lawsuits in such situations because of workers' comp provisions barring lawsuits against co-workers or agents of the employer. Yet other states see the company doctor as having a different, independent role from the employer, sufficiently separate to make a malpractice lawsuit appropriate against the doctor and/or the employer.

Conclusion

The question of who is responsible for aggravation of a covered work injury by medical malpractice is complex and completely variable by jurisdiction. The importance of retaining a knowledgeable attorney cannot be stressed enough.

Medical Malpractice and Workers' Comp Claims

To read and print out a copy of this form, please use the link below.

Medical Malpractice and Workers' Comp Claims

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 1994-2007 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

View Previous Months' Selections