Harley L. VAUSE, Individually, and as Personal Representative of the Estate of Joyce L. Vause, Deceased, Appellant, v. BAY MEDICAL CENTER, Douglas L. Stringer, M.D., Panama City Neurosurgical Associates, P.A., John Taylor, Individually, and Patrick Bowman, Individually, Appellees, 687 So. 2d 258

EN BANC OPINION ON MOTION FOR REHEARING WOLF, Judge. We grant appellees’ motion for rehearing, withdraw the opinion issued in this case on October 27,1995, and substitute the following opinion in its place. The appellant/plaintiff challenges the trial court’s dismissal with prejudice of his complaint seeking damages for the wrongful death of his wife. We affirm the trial court’s decision in part and reverse in part. The plaintiff filed an 18-count complaint seeking damages for the wrongful death of his wife, 52-year-old Joyce L. Vause.

The complaint alleges that on July 21,1991, Joyce Vause, a nurse employed by Bay Medical Center (BMC), accompanied a patient inside BMC’s hyperbaric chamber. According to the complaint, BMC and its administrators had actual knowledge that there was no competent technical staff operating the chamber, and there was no competent director in charge of the department. The complaint alleges that grossly negligent errors were committed both during the simulated dive and after Vause exited the chamber, at which time staff failed to diagnose Vause’s obvious signs of decompression sickness.

At 11:30 a.m., approximately two hours after exiting the chamber, Joyce Vause died from nitrogen embolization due to decompression sickness. In addition to BMC itself, the complaint individually names John Taylor, Patrick Bowman, and Dr. Douglas Stringer, as defendants. The complaint alleges that defendant Dr. Douglas Stringer was codirector of the hyperbaric center, that defendant Patrick Bowman was the operator of the hyperbaric chamber, and that defendant John Taylor was the administrator of the Bay Medical Center.

The complaint in pertinent part describes the duties and responsibilities of the parties at the Bay Medical Center (BMC) as follows: 12.At all times material hereto, BAY MEDICAL CENTER’S Hyperbaric Medicine Department was separated from other departments, works, and missions of the Hospital. The activities of the Hyperbaric Medicine Department included the treatment of decompression sickness. Decompression sickness can result from the formation of nitrogen bubbles in the blood or body tissue due to changes of atmospheric pressure.

Often the condition is suffered by scuba divers who ascend too quickly at the conclusion of a dive or stay under water too long without properly ascending to the surface. 13. A hyperbaric chamber is an artificial environment which is used to cure decompression sickness. The hyperbaric chamber is a cylindrical metal tank. A scuba diver with decompression sickness (commonly referred to as the “bends”) is placed inside the chamber during the treatment process.

It is also routine for a registered nurse to also get inside the chamber with the patient during the treatment process to administer medication or provide other necessary assistance to the patient. The chamber operators specially trained in hyperbaric chamber operations remain outside the hyperbaric chamber and have exclusive control over the atmospheric condition inside the chamber.

During the treatment process, the chamber operators regulate the atmospheric pressure inside the chamber under a calculated process and also provide specific mixtures of gases to each person inside the chamber during a simulated “dive.” It is required after a “dive” to ensure that neither the patient nor nurse (tender) have untreated decompression sickness. 14. The medical director of the hyperbaric chamber establishes the procedures and administers the manner in which the chamber operators regulate the conditions inside the hyperbaric chamber to the patient and the attending nurse.

The medical director and the BAY MEDICAL CENTER hospital administrator also has a duty to ensure that only competent properly trained and properly skilled persons participate as chamber operators when the hyperbaric chamber is being used. The medical director of the hyperbaric chamber has a duty to refuse to treat any person with decompression sickness in the hyperbaric chamber if there are not competent, skilled, and properly trained chamber operators available to operate the chamber at any given time. 15.

The attending physician has a duty to evaluate any person with decompression sickness (the “bends”) and to prescribe the particular procedure and protocol to be followed by the chamber operators in treating a person with the “bends.” The particular procedures and protocol followed by the chamber operator are under the exclusive control of the attending physician, and the chamber operators are under a duty to follow the exact procedures and protocol established by the attending physician during any particular treatment of a person.' 16. Since 1984, JOYCE L.

VAUSE, R.N., was a registered nurse employed by 'BAY MEDICAL CENTER and assigned primarily to full-time duties in the Hospital’s Obstetric Department. The Obstetric Department is unrelated to the Hyperbaric Medicine Department at BAY MEDICAL CENTER. Since 1988, JOYCE L. VAUSE, R.N., worked part-time as an on-call nurse in the BAY MEDICAL CENTER Hyperbaric Department. The representative, agents, and employees of BAY MEDICAL CENTER who committed the acts of gross negligence complained of herein which caused the death of JOYCE L.

VAUSE, R.N., were operating in the furtherance of the business of BAY MEDICAL CENTER, but were assigned primarily to unrelated works to that of JOYCE L. VAUSE, R.N. The defendants filed motions to dismiss the complaint on various grounds, including sovereign immunity and the employer’s tort immunity under

section 440.11, Florida Statutes, as well as the plaintiff’s election of a workers’ compensation remedy. The trial court dismissed the complaint with prejudice, without explaining the basis for its ruling. The dismissal was improper to the extent that it was based upon the plaintiffs having elected a workers’ compensation remedy. Election of remedies is an affirmative defense that is not properly raised by means of a motion to dismiss where the affirmative defense does not appear on the face of the prior pleading. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975).

See also Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of the affirmative defense. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992).

Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense. Alexander Hamilton Corp. v. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987); see Hett v. Madison Mut. Ins. Co., 621 So.2d 764 (Fla. 2d DCA 1993); rev. dismissed, 632 So.2d 1026 (Fla.), cert. denied, 511 U.S. 1133, 114 S.Ct. 2147, 128 L.Ed.2d 874 (1994). The plaintifPs complaint does not clearly show the applicability of the defense.

Indeed, nowhere in the complaint is it asserted or suggested that the plaintiff pursued a workers’ compensation remedy to a determination on the merits or to final settlement so as to give rise to an election of remedies defense. See Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA), rev. denied, 659 So.2d 1087 (Fla.1995). Consequently, the defense could not have been the basis for dismissal of the complaint against any of the defendants. It is not disputed that BMC is a public hospital vested with sovereign immunity; therefore, BMC is not liable for the willful, wanton, or malicious conduct of its employees.

See § 768.28(9)(a), Fla.Stat. (1991); Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673, 676 (Fla.1995); Elliott v. Dugger, 579 So.2d 827 (Fla. 1st DCA), rev. denied, 591 So.2d 181 (Fla.1991). Appellant, however, asserts that in accordance with the decision in Holmes County School Bd. v. Duffell, 651 So.2d 1176 (Fla.1995), BMC as a public entity can be sued for the negligent act of its employees, notwithstanding the broad immunity from suit granted to employers and coemployees of workers who are injured on the job and who are entitled to workers’ compensation benefits.

Although in Holmes, the court recognizes that under

section 440.11(1), Florida Statutes, a public employer could be liable if an injury occurred as a result of the negligence of a coemployee “assigned primarily to unrelated works,” appellant cites no case nor law which would support his position that an obstetrical nurse who works regularly, albeit on a part-time basis in another department providing health care, is engaged in work unrelated to that of the hospital supervisor, the departmental supervisor, or the operator of the machine which is utilized to provide care for the patient whom the nurse is attending.

Section 440.11(1), Florida Statutes (1991), in pertinent part states, The liability of an employer ... shall be exclusive and in place of all other liability of such employer to any third-party tort-feasor and to the employee....

The same immunities from liability enjoyed by the employer when such employee is acting in furtherance of the employer’s business shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business_ Such fellow-employee immunities shall not be applicable ... to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.

The appellant relies heavily on the case of Holmes County, supra, in arguing that he is entitled to sue BMC and that his complaint sufficiently alleges that the decedent and the defendants were involved in unrelated works pursuant to

section 440.11(1), Florida Statutes. In Holmes, however, there was no dispute concerning whether the defendants were involved in unrelated works: The trial court made a determination that Duffell and Lewis were assigned to unrelated works. This determination was not disputed on appeal to the district court, addressed by the district court or presented in the petition for our review. Id. at 1177, n. 1. The supreme court in Holmes did not address the issue which is before this court; therefore, Holmes offers no support for the appellant’s argument.

Holmes is also factually distinguishable in that the injured employee there was employed as a school custodian at the time of the injury, and the temporary duties which were undertaken at the time of the injury, unloading school children from a school bus, were in no way related to his normal duties as a custodian. In the instaht case, appellant’s wife was acting in her capacity as a part-time hyperbaric nurse and performing duties associated with that employment at the time of the injury. The case of State of Florida Department of Corrections v.

Koch, 582 So.2d 5 (Fla. 1st DCA), rev. denied, 592 So.2d 679 (Fla.1991), relied on by appellant, also provides no support for appellant’s contention. As this court noted, “In the present ease, neither party disputes that, pursuant to the Workers’ Compensation Act, victim Koch and DOC employee Tyre were co-employees ‘assigned primarily to unrelated works.’ ” Id. at 7. The only eases which have specifically addressed what constitutes “unrelated works” have held that while employees may have different duties as related to the same project, it does not mean they are involved in “unrelated works.” Abraham v.

Dzafic, 666 So.2d 232 (Fla. 2d DCA 1995); Johnson v. Comet Steel Erection, Inc., 435 So.2d 908, 909 (Fla. 3d DCA 1983).

In Johnson, the court held, Where appellant, an employee of the general contractor, was injured as a result of the ordinary negligence of the subcontractor’s employee while both were employed on-site in the same construction project, the fact that appellant was a common laborer for the general contractor and the tortfeasor was a welder for the subcontractor did not make their work “unrelated” so that the immunity enjoyed by the subcontractor from suit by an employee of the general contractor would be inapplicable.

In the instant case, while there were con-clusory allegations that the coemployees were engaged in unrelated works, the alleged facts do not support this conclusion. At the time of the injury to the deceased, she was engaged in activity related to her primary assignment, the provision of health care to a patient. (The complaint clearly alleges that nurses are routinely in the chamber “to administer medicine or provide other necessary assistance to the patient”).

The fact that the decedent was assigned to a different department or that she was using a specialized piece of medical equipment should not serve to undermine the broad workers’ compensation immunity provided in

section 440.11(1), Florida Statutes. The operator of the hyperbaric chamber and Nurse Vause had a similar relationship as the welder and the laborer in Johnson, supra: They were both involved in the same project (rather than an unrelated project)— the care of one particular patient. The director of the chamber was also involved in the same project. Furthermore, the appellant fails to explain how the administrator of the entire hospital could be involved in works unrelated to a nurse who works in that same hospital.

Each individual defendant was assigned to duties related to the purpose and function of decedent’s job: The provision of health care to patients of the medical center. The facts alleged in the complaint establish this relationship. The trial court, therefore, could have correctly dismissed the complaint against BMC because the court could have found that the employees were not engaged in unrelated works. We next address those counts brought directly against nurse Vause’s coemployees.

Section 440.11(1), Florida Statutes (1991), extends immunity to fellow employees, but states that “[s]ueh fellow-employee immunity shall not be applicable to an employee who acts ... with willful and wanton disregard ... or gross negligence,” and such behavior results in injury to a fellow employee. We must assume that all allegations in the eom-plaint are true, and we are obliged to draw all reasonable inferences in favor of the pleader. A claim need only contain a short and plain statement of the ultimate facts showing that the pleader is entitled to relief. Fla.R.Civ.P. 1.110(b)(2),- Abruzzo v.

Haller, 603 So.2d 1338, 1340 (Fla. 1st DCA 1992). The battery, fraud, and conspiracy claims against individual defendants Bowman, Taylor, and Dr. Stringer contain the essential allegation of willfulness to survive dismissal. The defendants’ arguments involve matters best left for

summary judgment or trial. Appellant also asserts a claim against Dr. Stringer in his capacity as a doctor rather than a coemployee of the hospital. In pertinent part, the claim reads as follows: COUNT X MEDICAL NEGLIGENCE AGAINST DEFENDANT DOUGLAS L. STRINGER, M.D. 63. As a result of the risks and clear and present danger to JOYCE L. VAUSE, R.N., of contracting decompression sickness, known to Defendant STRINGER, he had a duty to diagnose and treat any such disease after JOYCE L. VAUSE, R.N., exited the hyperbaric chamber. 64. On July 21,1991, JOYCE L.

VAUSE, R.N., exhibited known signs and symptoms of decompression sickness caused by the conditions in the hyperbaric chamber during the 13-1/2 hours she spent in the chamber attending patient ROGER DART. The complaint does not, however, state that Dr. Stringer saw the decedent after she emerged from the chamber, nor that he diagnosed or treated the decedent. Therefore, there is no factual allegation establishing any physician-patient relationship. It is argued that the cases of Pate v. Threlkel, 661 So.2d 278 (Fla.1995), and Werner v.

Varner, Stafford and Seaman, P.A., 659 So.2d 1308 (Fla. 4th DCA 1995), stand for the proposition that privity between the plaintiff and physician is not always needed to establish liability. We do not believe, however, that either Pate or Werner would support an action for medical negligence absent a physician-patient relationship. In Pate and Werner, the issue was whether in a situation where a doctor-patient relationship or privity existed, the duty under that relationship could be extended to a third party.

In Werner, the court specifically recognized that the issue concerned liability to a third person, and recognized that such liability was extended in only very limited circumstances absent privity between the patient and the doctor. These circumstances are where the defendant’s failure to properly diagnose or treat a patient in privity with the doctor resulted in harm to an identifiable third party. In the instant case, there is no allegation that Dr. Stringer was acting in his capacity as a doctor as to any party or endeavored to diagnose or treat any patient.

Thus, the issue in the instant case, unlike Pate or Werner, is whether any doctor-patient relationship existed as to any party, not whether the benefits of such a relationship may be extended to a third party. Even if it is found that a third-party issue exists in this case, there is no showing of a special relationship which would result in extending liability absent privity. We do, however, agree that the plaintiff should be entitled to amend the complaint in order to determine whether a claim of medical negligence may be alleged based on the establishment of a doctor-patient relationship between Dr.

Stringer and any party which may inure to the benefit of the deceased. We, affirm the dismissal of the complaint against the defendant BMC, but reverse and remand the dismissal with prejudice against the individual defendants. BARFIELD, C.J., and JOANOS, ALLEN, KAHN, WEBSTER, DAVIS, BENTON and VAN NORTWICK, JJ., concur. MINER, J., concurring in part and dissenting in part with opinion with which ERVIN, MICKLE, LAWRENCE and PADOVANO, JJ., concur. BOOTH, J., recused. . Panama City Neurological Associates (PCNA), the professional service corporation that employs Dr. Stringer, was also named as a defendant.

The allegations against PCNA are virtually identical to those asserted against Dr. Stringer. . Cases from other jurisdictions also provide no guidance as to what constitutes unrelated works. As noted in Larson Workers' Compensation, § 72.21 (Supp.1995), the Florida unrelated works exception is "unique." . We would note that the administrator, Taylor, acting as a corporate officer may be entitled to immunity from suit in that capacity.

Section 440.11(1), Florida Statutes (1991), provides in pertinent part: "The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his duties acts in a managerial or policy making capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policy making duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082.”