<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by tracylynn:
I work in housekeeping at a well established hospital. I have been stuck by hypodermic needles on two separate occasions and almost stuck a third time. (on the same day I was stuck the second time) The first accident report was lost. It had said that "the needle was 'carelessly' disregarded in the trash instead of the proper receptical." I am unsure about what I can do about this. Now I have to go through AIDS and Hepatitis tests regularly. This has my nerves completely frazzled. I hate walking into work now> I am constantly afraid of what I am going to come across next. This is negligence, right?<HR></BLOCKQUOTE>
My response:
Under your fact situation, I must make a key assumption - - that is, a co-employee of the hospital failed to use the proper recepticle for medical waste. Also, a co-employee is presumed under your facts to be an on-staff doctor, nurse, or other medical provider.
Under Worker's Compensation laws, there are no co-employee "dual capacity" exceptions; i.e., you are held to the "exclusive remedy rule" UNLESS you can show that the incident was purposeful and that the needles were deposited in the wrong recepticle with malicious intent.
An employee's right to seek damages for on-the-job injury caused by a co-employee is governed exclusively by Ca Labor § 3601. Under that statute, workers' compensation is the exclusive remedy for employee injury caused by the acts of a co-employee within the scope of employment unless attributable to the co-employee's intoxication or willful assault. [Hendy v. Losse (1992) 54 Cal.3d 723, 1 Cal.Rptr.2d 543]
Thus, when a work-related injury claim is predicated on a co-employee's acts, the issue is whether the co-employee was acting within the scope of employment when the conduct complained of occurred. Absent intoxication or willful assault, the co-employee is subject to a civil suit (not protected by the exclusivity shield) only if acting "outside" the scope of employment when the injury was inflicted. [Ca Labor § 3601.
I'm very sorry about your incidents, and the fact I could not assist you further in this matter. Good luck to you and I sincerely hope that each of your tests come back negative.
IAAL
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