Illinois Medical Malpractice Claim Barred Under the Illinois Tort Immunity Act - Hemminger v. Nehring — Chicago Medical Malpractice Attorney Blog

An Illinois medical malpractice claim involving a failure to diagnose cancer was barred by the Illinois Appellate Court under the Local Governmental and Governmental Employees Tort Immunity Act. Defendant CGH Medical Center Auxiliary, d/b/a CGH Medical Center, was a municipal entity, and according to the Act, government entities, such as a public health clinic, are immune from certain types of negligence committed by the entity and/or its employees.

The Appellate Court reviewed Hemminger v. Nehring, et al., No. 3-08-0751, to determine whether the Tort Immunity Act immunized the defendants against allegations of medical negligence contained within plaintiff’s complaint. The plaintiff’s complaint alleged that the defendant’s employee was negligent when she failed to correctly interpret the decedent’s Pap smear, which showed that the decedent had cervical cancer. As a result of the defendant’s negligence, the decedent’s cancer went undiagnosed for six months. By the time her cervical cancer was diagnosed it was classified as Stage IIIb and eventually led to her death.

In response, the defendants filed motions for summary judgment, which if granted would result in the case’s dismissal. In its motions, the defendants argued that they were immune from any liability or negligence under the Tort Immunity Act. They also argued that the case should be dismissed because the plaintiff failed to file the complaint within the one year statue of limitations set out for municipal entities. The plaintiff’s complaint was instead filed within two years of the medical negligence, which would have met the statute of limitations for a non-government entity.

The trial court granted the defendants’ motions and dismissed the Illinois medical malpractice claims against them. Plaintiff then appealed to the Illinois Appellate Court, arguing that the alleged negligence against the defendants were not in fact covered by the Tort Immunity Act, and as such should not be barred.

However, in its opinion, the Illinois Appellate Court pointed to §6-105 and §6-106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/). In the Court’s opinion, the Pap smear qualified as “screen test that is clearly part of the diagnostic process [and as such is] precisely the conduct that both §6-105 and 6-106 immunize.”

Section 6-105 specifically states:

Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others.

Section 6-106 states that:

(a) Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental or physical illness or addiction or from failing to prescribe for mental or physical illness or addiction.

(b) Neither a local public entity nor a public employee acting within the scope of his employment is liable for administering with due care the treatment prescribed for mental or physical illness or addiction.

(c) Nothing in this section exonerates a public employee who has undertaken to prescribe for mental or physical illness or addiction from liability for injury proximately caused by his negligence or by his wrongful act in so prescribing or exonerates a local public entity whose employee, while acting in the scope of his employment, so causes such an injury.

(d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission in administering any treatment prescribed for mental or physical illness or addiction or exonerates a local public entity whose employee, while acting in the scope of his employment, so causes such an injury.

The Appellate Court held that the defendants were acting in the scope of their employment when reviewing plaintiff’s Pap smear and could not be held liable for any failure to diagnose the decedent’s cancer. Therefore, the medical negligence claims brought against the defendants were dropped. And because the appellate court already affirmed the case’s dismissal regarding the issue on immunity, it was necessary to consider statute of limitations issue.

Kreisman Law Offices has been handling Illinois failure to diagnose cancer claims for over 30 years, serving those areas in and around Cook County, including Elk Grove Village, Berwyn, Blue Island, and Chicago.