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Tatum v. Medical University of South Carolina8/20/2001
anting MUSC's motion to dismiss pursuant to Rule 12(b)(6), SCRCP, is reinstated. McEachern v. Black, 329 S.C. 642, 496 S.E.2d 659 (Ct. App. 1998) (trial court's grant of motion to dismiss will be sustained if facts alleged in the complaint do not support relief under any theory of law).
REVERSED.
MOORE, J., concurs. WALLER, J., concurring in a separate opinion. TOAL, C.J., dissenting in a separate opinion in which PLEICONES, J., concurs.
WALLER, A.J. (Concurring in result with the majority):
Although I am sympathetic to Tatum, I am constrained to concur with the majority opinion. Pursuant to S.C. Code Section 42-15-70, it is patent that MUSC is not liable for the negligence of its treating physician, and Tatum's exclusive remedy is worker's compensation. Accordingly, as the legislature has not indicated an intent to allow Tatum to recover in this situation, I must concur with the majority.
Moreover, although I am not averse to adoption of the dual persona doctrine, I concur with the majority that it would have no application to the present case. There is a distinction between the doctrines of dual capacity and dual persona. As noted by Professor Larson,
[A dual persona] is quite different than a person acting in a capacity other than that of employer. The question is not one of activity or relationship- it is one of identity. The Tennessee Supreme Court, brushing aside all the fictitious sophistry of 'dual capacity,' nailed down this point with breathtaking simplicity:
The employer is the employer; not some person other than the employer. It is as simple as that.
The only way a court can break through this monolithic truism is to resort to a legal fiction. 6 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law ยง 113.01 (2000).
To hold Tatum may recover in tort from MUSC is, in reality, simply an application of the legal fiction known as the dual capacity doctrine, a doctrine sharply criticized by Professor Larson, and previously rejected by this Court. Id.; Johnson v. Rental Uniform Service of Greenville, 316 S.C. 70, 447 S.E.2d 184 (1994).
CHIEF JUSTICE TOAL:
I respectfully dissent. In my opinion, the Court of Appeals correctly held that Mrs. Tatum and Mr. Scarborough should not be precluded from pursuing these negligence and loss of consortium claims in light of the "dual persona" doctrine. Once MUSC undertook to act as Mrs. Tatum's medical provider, it took on a persona legally distinct from its status as her employer. I would dismiss the writ of certiorari as improvidently granted.
PLEICONES, concurs.
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