1. Why did plaintiff Hendy oppose the motion on the grounds of fraud?

2. Why did the plaintiff desire to allege the status of the team physician as being an independent contractor and not an employee of the club?

NFL draft pick, and selected to the League’s All-Rookie Team for his play for the San Diego Chargers, John Hendy seemed unstoppable. Then he met the immovable object—the NFL-Players and Owners Collective Bargaining Agreement (CBA).

While playing in an early 1986 football  game, he suffered an injury to his right knee. Under the terms of the CBA, in order to continue to receive his salary and medical care at the expense of the Chargers, Hendy was required to consult the team physician, Dr. Gary Losse. The physician examined Hendy and advised him to continue playing football. Almost a year later, after yet another injury to the knee, Hendy again consulted Dr. Losse who again advised him to continue playing football. This resulted, according to the allegations in the complaint, in Hendy suffering “irreparable and permanent injury to his right knee.” The complaint then alleges that, after finally consulting a physician who was not an employee of the Chargers, Hendy discovered that the cause of his injuries was Dr. Losse’s lack of the knowledge and skill necessary to properly diagnose and treat Hendy’s condition.

As a consequence Hendy filed this malpractice suit against Dr. Losse. Dr. Losse then filed a motion asking the court to recognize that, even if all Hendy’s allegations were true, he could not recover from Dr. Losse in a civil action for malpractice. Instead, under California law, the motion argued that Hendy’s sole and exclusive remedy for the employment-related injuries was within the workers’ compensation system of the state. Hendy opposed the motion on the grounds that the injury was aggravated by the employer’s “fraudulent concealment of the existence of the injury and its connection with the employment.” In addition, Hendy indicated a willingness to amend his complaint to construe Dr. Losse not as an employee but as an independent contractor.

The California Supreme Court allowed the motion by Dr. Losse and did not grant plaintiff Hendy leave to amend his complaint to allege Dr. Losse was an independent contractor. As a consequence, the plaintiff’s exclusive remedy for the injuries was through the state’s workers’ compensation system. He could not bring a civil suit for malpractice.