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Alander v. VacaValley Hospital9/5/1996
KLINE, P. J.
I. INTRODUCTION
Eleanor Alander appeals from the trial court's judgment following its order granting summary judgment in favor of respondent Northbay Healthcare Corporation doing business as Northbay Healthcare Foundation and VacaValley Hospital (hereinafter VacaValley). She also appeals the court's order denying her motion for reconsideration, and its order modifying the earlier summary judgment order and denying her motion for new trial. Appellant contends that the Workers' Compensation Act is not her exclusive remedy because the dual capacity exception allows her to bring a tort action against VacaValley, her employer, for negligent medical treatment where the doctor-patient relationship between them arose after her initial industrial injury. She further contends that her workers' compensation benefits award received on July 7, 1992, is not res judicata as to her current medical malpractice suit.
Because we conclude that the dual capacity doctrine is not applicable and appellant's exclusive remedy lies within the workers' compensation scheme, we shall affirm the judgment.
II. STATEMENT OF FACTS
In March of 1992, appellant became a volunteer at VacaValley. On May 7, 1992, while working at the hospital, appellant's hand was punctured with possibly contaminated scissors. This type of injury is commonly referred to as a "needle stick."
At the time of appellant's injury, VacaValley had in place a protocol for "Significant Employee Exposure to Blood or Bodily Fluids." The protocol, which is one of the terms and conditions of all hospital employees' (and volunteers') employment, requires that an employee who suffers potential exposure to blood or body fluids be vaccinated for hepatitis B if deemed necessary, unless the employee declines vaccination by written statement. The protocol also states that HIV antibody testing will be recommended and that " esting is voluntary, free and confidential, and may be done in house or at another lab." HIV testing, if elected, is to be done within one week of the exposure and then at three and six months. All expenses are borne by VacaValley under its employee health program.
Pursuant to this protocol, on May 7, 1992, following the needle stick, appellant elected to receive treatment at VacaValley. She was given gamma globulin shots to prevent hepatitis and had blood drawn for HIV testing. On June 16, 1992, appellant received a second hepatitis shot and had more blood drawn for HIV testing at VacaValley. During this second blood draw, appellant sustained nerve damage to her right arm, resulting in an 11 percent permanent disability.
III. STATEMENT OF THE CASE
On June 23, 1992, appellant filed a claim for workers' compensation benefits, which described her injury as the May 7, 1992, needle stick and the June 16, 1992, nerve damage. On or about July 7, 1994, appellant received a $2,397.50 award for injury to her left hand (the needle stick) and to her right arm (the nerve damage).
On September 3, 1993, appellant filed a lawsuit against VacaValley, alleging medical malpractice with regard to the nerve injury of June 16, 1992. On February 10, 1994, VacaValley moved for summary judgment, contending that appellant was barred from seeking damages at law by the exclusive remedy provision of workers' compensation set forth in Labor Code section 3602. The trial court granted VacaValley's summary judgment motion on March 16, 1995, stating in a written order, "Defendant's Motion for Summary Judgment is granted, as plaintiff is precluded from suing defendants by availing herself of the workers' compensation remedy." At the hearing on the summary ju
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