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the customer is barred by the exclusive remedy” provisions of the Act. Control is the key test in determining the existence of an employer/employee relationship in all contexts under the Act, and it is therefore not surprising that the Court of Appeals has held in this situation that a “dual employment” relationship exists.


The Dual Capacity Doctrine


Does the Act Confer Immunity When the Employer, Well After the Compensable Injury, Tortiously Injures the Employee Again While Acting in a Capacity Other Tan As Employer?


If an employee having the choice of where to receive


medical care chooses well after the initial compensable injury to be treated at his employer’s facility and is victimized by negligent medical care, shouldn’t the employee be entitled to pursue the same common law negligence remedies against the employer as he would have been entitled to pursue had he received medical care by a provider other than his employer? Te Court of Appeals in Suburban Hospital v. Kirson,48


held


that an employee of Suburban Hospital, who elected to be treated and undergo surgery in the same hospital in which she worked, could not pursue a lawsuit against Suburban Hospital for medical malpractice in her treatment, even 48 362 Md. 140, 763 A.2d 185 (2000).


48 Trial Reporter / Spring 2011 FOR DENIAL?


though Suburban Hospital was not acting in its capacity as the employer at the time, but rather, was acting in a “dual capacity” as a health care provider to the worker. Some workers’ compensation practitioners believe this decision was incorrect. Te Court of Appeals rejected the “dual capacity” theory and found that the medical malpractice claim was barred by the Workers’ Compensation Act.49


Te Court based


its decision on, inter alia, a literal reading of the language in the third party section of the Act permitting third party lawsuits against “a person other than an employer”50


and on


the rationale that the case did not present a pure dual capacity case in which the tort of the employer had nothing to do with the compensable injury, because the employer in rendering medical care to the worker was fulfilling its duty to provide medical treatment under the Act.51


As noted, the decision is


controversial, because an injured worker is entitled to choose where he/she will receive medical care, and had Ms. Kirson chosen to receive the treatment elsewhere, a third party lawsuit would have been available.


A Defense Strategy to Circumvent the Immunity


Can an Employer Be Impleaded In A Tird Party Negligence Suit Under Tird Party Practice For Either Contribution or Indemnification?


Te short answer to the question posed is no in


Maryland. Based on the exclusivity provision of the Worker’s Compensation Act, the Maryland Courts have held that in a suit by an employee against a third party, an employer cannot be impleaded by the defendant under third party practice52 for indemnity or contribution. Te first case to address this issue was Baltimore Transit Co v. State, to use of Schriefer,53


in


which an employee of the City of Baltimore (“the City”) was killed when the truck on which he was riding was struck by a street car owned by the Baltimore Transit Co. After pursuing a workers’ compensation claim against the City, a third party suit was filed. Te defendant, Baltimore Transit Co., sought to implead the City for contribution and indemnity, alleging that the truck operator was negligent and was acting as the agent or servant of the City at the time of the accident. Te Court of Appeals held that the Workers’ Compensation Act bars any defendant from impleading the Plaintiff ’s employer for contribution or indemnification, stating that an “employer should not be held liable indirectly in an amount that could not be recovered directly, for this would run counter to one of the fundamental purposes of the compensation law,” 54


that an employer would be immune from liability at common law.


49 Id. at 172, 763 A.2d at 203. 50 Md. Labor & Employ Art. Code Ann. Section 9-901. 51 Suburban Hospital, 362 Md. at 174-175, 762 A.2d at 204 52 Md. Rule 2-332. 53 183 Md. 674, 39 A.2d 858 (1944). 54 Id. at footnote 9.


i.e.


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