By Jordan F. Mayes and Eric L. Baxley

Staff Attorneys for the S.C. Workers’ Compensation Commission

 

When a healthcare worker is injured on the job and their employer, taking it upon themself to treat the injury, commits medical malpractice, do workers’ compensation acts allow the worker to sue their employer for medical malpractice?

To illustrate this conundrum, consider the following hypothetical fact pattern:

Rowan Lassiter stepped from behind the nurses’ station to attend to the patient in room 456. She stopped for a moment to massage her bandaged finger, which had grown increasingly swollen and painful over the past week after cutting it while working with a patient. She proceeded past rooms 452, 453, 454…the hallway started to dim. It wasn’t until Rowan lay staring at the ceiling from the linoleum floor that she realized the old florescent lights weren’t what was on the fritz.

As a battle for consciousness arrested her, she was only numbly aware of the thumpity-thump of soft-soled shoes quickly gathering around her.

Rowan opened bleary eyes in a pre-op room.

A pre-op nurse and a nurse anesthetist stood in Rowan’s room. The nurses had their backs to her, but she overheard “infected cut” and “sepsis”.

Seemingly aware that she’d awoken, both nurses turned their attention to her. She started to listen as one nurse spoke, but an empty vial of anesthetic in the other nurse’s hand shifted her focus. The small bottle concerned her.??? If she never regained conciousness hows this known?? She raced through the crevices of her mind to figure out why but, Ugh!, the medication was starting to kick in. Rowan succumbed to the anesthesia, unaware that she had just waged her final battle for consciousness.

The coroner’s autopsy report listed Rowan’s cause of death as sepsis shock.

The Estate of Rowan Lassiter brought a wrongful death suit for medical malpractice against several defendants, including Cranford Health Care, alleging the negligent administration of the decedent’s pre-op anesthesia.

Cranford Health Care filed a motion to dismiss, asserting, as Rowan Lassiter’s employer, that the South Carolina Workers’ Compensation Act provided immunity from tort suits by employees or their estate. Accordingly, the movant requested to be dropped as a party defendant in this matter. How should the judge rule?

Rowan’s story illustrates a special dilemma in workers’ compensation law. South Carolina has a unique statute concerning this situation, whereby employers are not liable for damages that result from medical malpractice, but the consequences of any malpractice are considered part of the work-related injury; therefore, the employer is responsible for compensation and treatment that is due as a result of the malpractice.[1]

When it comes to tort suits against an employer, as is the case in most states, South Carolina’s Workers’ Compensation Act contains a provision which generally prohibits workers from suing their employer under tort laws for work-related accidents and limits injured employees’ rights and remedies to those provided by the Act.[2]

However, there are exceptions to this rule; one exception is the dual persona doctrine. In Lex Larson’s treatise on workers’ compensation law, he states, “[a]n employer may become a third person, vulnerable to tort suit by an employee, if—and only if—it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.”[3] The implementation of this doctrine varies across states, but the South Carolina Supreme Court has recognized the validity of the dual persona doctrine since Mendenall v. Anderson Hardwood Floors, LLC (2013).

Dual Persona vs Dual Capacity

The adoption of the dual persona doctrine comes from the ashes of the dual capacity doctrine. According to Larson, the dual capacity doctrine states that an employer is vulnerable to suit as a third party if the employee is injured while the employer is acting in a capacity other than that of employer.[4] South Carolina’s Supreme Court further clarified that, “[w]hile the ‘dual persona’ doctrine recognizes different identities, the ‘dual capacity’ doctrine recognizes different activities or relationships.”

Larson, along with most modern courts, decries the dual capacity doctrine, as employers regularly act in multiple additional capacities, including as landowners, repair technicians, and safety inspectors. Larson argues that to bypass exclusivity provisions so frequently, simply because many employers inherently occupy multiple capacities, is to needlessly erode the clearly stated legislative purpose of making workers’ compensation benefits a broadly exclusive remedy.[5]

Applying the Dual Persona Doctrine

The dual persona doctrine is typically only applied in a very narrow range of circumstances. Courts nearly unanimously hold that the dual persona doctrine does not allow employees to sue their employer for torts committed as the owner or occupier of land, as most employers own, occupy, or maintain premises in some way.[6] Likewise, courts also nearly unanimously hold that an employer who manufactures a product is generally not liable under tort to its employees for injuries caused by using the product at work; the employer’s additional role as the product’s manufacturer does not, by itself, create a sufficiently distinct persona so as to satisfy the dual persona doctrine.[7]

But what about medical malpractice by a healthcare provider who is also the patient’s employer, as illustrated earlier with Rowan Lassiter?  First, in Tatum v. Med. Univ. of S.C. (2001), the SC Supreme Court ruled the dual persona doctrine did not apply to a case in which an MUSC employee, seeking treatment for a work-related injury, was referred to an MUSC doctor. Subsequently, the injured employee sought to sue for medical malpractice. The SC Supreme Court, reversing the Court of Appeals’ decision, did not apply the dual persona doctrine because MUSC is only one legal entity, which happened to be acting in multiple capacities.[8]

Twelve years later, however, in Mendenall v. Anderson Hardwood Floors, LLC, the South Carolina Supreme Court explicitly adopted the dual persona doctrine while unambiguously refusing to adopt the dual capacity doctrine.[9] This was a direct departure from the precedent set in Tatum; the court stated in Mendenall that, “[a]lthough the Tatum majority’s discussion of the dual persona doctrine is correct, its application of the law to the facts of that case was erroneous.” Citing Larson, the court noted that, “[i]f the dual persona doctrine is to apply, it must be possible to say that the duty arose solely from the nonemployer persona…. For only in such a case can the second persona be really distinct from the employer persona. In other words, it is not enough … that the second persona impose additional duties. They must be totally separate from and unrelated to those of the employment.”[10]

In 2024, in Baxter v. Pilgrim’s Pride Corporation, the SC Court of Appeals expressed the belief that the Mendenall decision may have restored the Court of Appeals’ original reasoning in Tatum, which applied the dual persona doctrine to medical malpractice claims against an employer acting as a medical services provider. In support of this holding, the Court of Appeals noted that the Mendenall decision favorably cited a Michigan case, Herbolsheimer v. SMS Holding Co., 239 Mich. App. 236, 608 N.W.2d 487 (2000), which stated that a co-employee’s medical malpractice claim was, “the type of situation to which the dual persona doctrine was intended to apply”.[11]

It is worth noting, however, that this statement from Herbolsheimer is based on an earlier case in which a city police officer was shot on the job and received negligent care at a city-owned hospital; the court found that even though both parties worked for the city, the police department and the hospital were practically two separate entities. This scenario is distinct from one in which the worker is directly employed by the hospital. Thus, it remains to be seen whether the South Carolina Supreme Court will apply the dual persona doctrine in this way.[12]

According to Larson, these kinds of cases are usually barred.[13] Neighboring states provide little guidance for how South Carolina courts should proceed; North Carolina courts have not addressed the dual persona or dual capacity doctrines????,[14] and Georgia courts, while refusing to adopt the dual capacity doctrine, have left the dual persona doctrine open to future adoption by the courts.[15]

These scenarios are distinct from examples of unrelated transactions; if a healthcare worker is injured outside of work and is treated by their employer, the dual persona doctrine doesn’t apply, as the employee’s injury was not subject to the Workers’ Compensation Act to begin with.[16]

Returning to the hypothetical of Rowan Lassiter, it is unclear whether the South Carolina Supreme Court would allow the malpractice suit to go forward, as the application of the dual persona doctrine to cases of medical malpractice against an employee remains tenuous for the time being. Commissioners and attorneys should keep an eye out for future similar cases before the South Carolina Supreme Court, as a decision on this matter may very well set the precedent for South Carolina’s neighbors.

[1] SC Code Ann. § 42–15–70.
[2] SC Code Ann. § 42–1–540. See also Mendenall v. Anderson Hardwood Floors, LLC, 401 S.C. 558, 562, 738 S.E.2d 251, 253 (2013).
[3] Larson’s Workers’ Compensation Law § 113.01[1] (Matthew Bender, Rev. Ed. 2012).
[4] Larson’s Workers’ Compensation Law § 113.01[2].
[5] Id.
[6] Larson’s Workers’ Compensation Law § 113.02.
[7] Larson’s Workers’ Compensation Law § 113.03.
[8] Tatum v. Med. Univ. of S.C., 552 S.E.2d 18, 24 (2001), abrogated by Mendenall v. Anderson Hardwood Floors, LLC, 738 S.E.2d 251 (2013).
[9] Mendenall v. Anderson Hardwood Floors, LLC, 401 S.C. 558, 563, 738 S.E.2d 251, 253–54 (2013).
[10] Id. at 564.
[11] Baxter v. Pilgrim’s Pride Corp., 905 S.E.2d 136, 138 (Ct. App. 2024), citing Herbolsheimer..
[12] See Howard v. White, 523 N.W.2d 220 (1994) and Fletcher v. Harafajee, 299 N.W.2d 53 (1980).
[13] Larson’s Workers’ Compensation Law § 113.08[1].
[14] Anderson v. Piedmont Aviation, Inc., 68 F. Supp. 2d 682, 688 (M.D.N.C. 1999).
[15] Porter v. Beloit Corp., 391 S.E.2d 430 (1990).
[16] Larson’s Workers’ Compensation Law § 113.08.