Governmental Tort Immunity Upheld for Hospital Employees Acting Within the Scope of Their Employment
By: Elizabeth F. Larsen
In Hemminger v. Nehring, the plaintiff filed a complaint for the wrongful death of his wife, alleging medical negligence in the interpretation of his wife's Pap smear slides. The slides were reviewed by a licensed cytotechnician and a physician, who both found the slides to be within normal limits. The plaintiff's wife was ultimately diagnosed with Stage III cervical cancer and died.
The cytotechnician and the physician moved for summary judgement on the grounds that they were immune from suit under the Governmental Employees Tort Immunity Act. That statute provided that a healthcare provider employed by a local governmental entity cannot be sued for failing to diagnose a condition, failing to conduct a physical exam, or even failing to conduct an adequate physical exam. The defendants argued that since the hospital is a municipal entity, and the plaintiff had acknowledged that both defendants were employees of the hospital acting within the scope of their employment at the time the slides were reviewed, tort immunity applied to the plaintiff's claims. The plaintiff responded that the allegations of the complaint did not arise out of a failure to diagnose, but rather a failure to interpret a Pap smear, which is a screening device not intended to diagnose cancer. The trial court entered summary judgment in favor of defendants. The appellate court agreed.
The appellate court reasoned that the essence of the plaintiff's action was the defendants' failure to adequately examine and/or diagnose cervical cancer. The court noted that the defendants were examining cells for the purpose of determining whether the plaintiff's wife had a condition that was hazardous to her health. The court found that a Pap smear is a screening test that is "clearly part of the diagnostic process" and therefore immunized under the Tort Immunity Act.
This decision is important for malpractice defendants. If a healthcare provider is employed by a county or municipal hospital, and acting within the scope of his or her employment at the time of the alleged claim, the Governmental Employees Tort Immunity Act should be considered as a possible defense to the plaintiff's action. The decision is also important because it found that a Pap smear, a screening test, is a part of the overall diagnostic process for purposes of immunity. Courts tend to interpret immunity narrowly, but this decision is significant for its relatively broad view of the Tort Immunity Act.