<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by Loretta:
Setteled Florida workers comp claim out of court with regard to fall injury. However in a separate issue, durring medical treatment for injuries Workers comp doctors mis diagnosed a trauma injury over a two year period. The mis diagnosis resulted in long term loss of blood supply to bone in my wrist, causing vascular necrosis and death of the lunate bone.(Kienbocks)Can I claim Medical malpractice against this comp doctor?<HR></BLOCKQUOTE>
My response:
Check this out with your attorney, because this is California law. Also, make sure you are still within the Florida Statute of Limitations for Medical Malpractice. I do believe, however, that the same concepts apply.
Employee's right to sue third party tortfeasor: The workers' comp exclusive remedy rule does not prevent the employee from suing a third party responsible for the injury. An independent civil action seeking traditional tort damages against the third party may be prosecuted separately and simultaneously with the workers' comp claim. [Ca Labor §§ 3601 (suit against coemployee) & 3852 (suit against nonemployee); see also Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1683-1686, 19 Cal.Rptr.2d 601, 607-609--lawyer retained for limited purpose of handling workers' comp claim also owes duty to advise client of related third party tort claims]
The workers' compensation law does not preempt employee civil damages remedies against nonemployee third parties whose tortious misconduct contributed to the injury. [Ca Labor § 3852] However, the employee's civil damages recovery is subject to reduction for workers' comp benefits paid by the employer: Reimbursement of workers' comp benefits so paid is obtainable through an independent suit against the third party, intervention in the employee's suit against the third party, or by asserting a lien against the employee's recovery. [Ca Labor §§ 3852, 3853, 3856]
Employer/employee intervening in suit against third party tortfeasor: An employer or subrogee workers' compensation carrier who paid benefits to an employee injured on the job has the right to intervene in the employee's lawsuit against the person causing the injury for purposes of recouping its "damages" (the benefits paid). By paying the benefits, the employer or compensation carrier has a subrogation interest in the employee's cause of action, and a judgment rendered in the employer's/carrier's absence may impair that interest. [Ca Labor § 3853; San Diego Unified Port Dist. v. Super.Ct. (Marriott Corp.) (1988) 197 Cal.App.3d 843, 846, 243 Cal.Rptr. 163, 164; Carden v. Otto (1974) 37 Cal.App.3d 887, 891, 112 Cal.Rptr. 749, 751]
Limitation in medical malpractice actions: Ca Civil § 3333.2, part of the Medical Injury Compensation Reform Act of 1975 ("MICRA"), sets a $250,000 limit on noneconomic damages in an injury action against a health care provider based on professional negligence (medical malpractice).
Hope you're doing better.
IAAL
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[This message has been edited by I AM ALWAYS LIABLE (edited April 29, 2000).]
