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Suburban Hospital12/8/2000
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:
" uppose 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 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. Hosp., 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 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 "totally separate from and unrelated to those of the employment." Larson § 113.01 - , 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
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