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Suzan Lake v. Lakewood Chiropractic Center11/16/1993
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE.
No. A060327
1993.CA.41086 ; 24 Cal. Rptr. 2d 358; 20 Cal. App. 4th 47
Decided: November 16, 1993.
SUZAN LAKE, PLAINTIFF AND APPELLANT,
v.
LAKEWOOD CHIROPRACTIC CENTER ET AL., DEFENDANTS AND RESPONDENTS.
Superior Court of Sonoma County, No. 191656, Arnold D. Rosenfield, Judge.
Michael J. Langston for Plaintiff and Appellant.
DeMeo & DeMeo and John M. Anton for Defendants and Respondents.
Opinion by Merrill, Acting P. J., with Chin and Werdegar, JJ., Concurring.
Merrill
Suzan Lake appeals from an order sustaining the demurrer of respondents Lakewood Chiropractic Center (Lakewood) and Phillis Hickman to her second amended complaint without leave to amend, and the judgment of dismissal entered thereon. She contends that she was entitled to maintain this tort lawsuit for medical malpractice and damages
even though in a previous workers' compensation proceeding, the Workers' Compensation Appeals Board (WCAB) had determined that the injury on which this lawsuit is based arose out of and occurred in the course of her employment with Lakewood, and had awarded her workers' compensation benefits for the injury. We disagree with appellant's position and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 1990, appellant filed a workers' compensation claim for injury to her lower back incurred on August 11, 1990, in the course of her employment with Lakewood. The WCAB found that appellant, as an employee of Lakewood, received free chiropractic manipulations as a benefit of her employment; that appellant received injuries to her left hip and lower back upon being manipulated by Dr. Charles Bixby, a chiropractor who was an employee of Lakewood; and that these injuries were "arising out of and occurring in the course of her employment" with Lakewood. The WCAB awarded appellant temporary disability indemnity, reimbursement for the costs of medical care procured prior to the date of the WCAB decision, and payment for further medical care as needed to cure and relieve the effects of the injury.
At the hearing before the WCAB, appellant testified that she had been employed as a secretary and receptionist at Lakewood for two years at the time of the incident. On Saturday, August 11, 1990, a normal workday for her, appellant asked Dr. Bixby to do pressure points on her neck. She had also asked him to perform this procedure on previous occasions. While doing a total body adjustment, Dr. Bixby caused the injury to her left hip and lower back. Appellant had seen Dr. Bixby because he was one of the newer chiropractors whom Lakewood had told its employees to see for free adjustment during working hours.
Appellant filed her initial complaint in this tort lawsuit for damages on August 6, 1991. The complaint alleged that on August 11, 1990, appellant consulted Dr. Bixby "as a patient for care, diagnosis, treatment, manipulation, adjustment and evaluation," and that Dr. Bixby "negligently and carelessly failed and omitted to properly evaluate, diagnose, prescribe for, adjust, manipulate, care for and treat" her. As a result of Dr. Bixby's negligence, appellant suffered physical and emotional injuries and damages, including disc herniation and other potentially permanent injuries. The complaint also alleged that neither Dr. B
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