The opinion
JUSTICE COUSINS, dissenting:
In this appeal we decide whether sections 6 — 105 and 6 — 106 of the Illinois Tort Immunity Act (745 ILCS 10/1 — 101 et seq. (West 1996)) provide immunity from liability to Cook County Hospital and its employee physicians and nurses when they negligently misdiagnose and fail to treat a specific medical condition of a patient. In my view, in considering this issue, we must be ever mindful that the language of article I, section 12, of the Constitution of Illinois provides: “Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person ***.” Ill. Const. 1970, art. I, § 12. Thus, since our Illinois Constitution provides that where there is an injury there is also a remedy under law, it is my view that the provisions of the Tort Immunity Act were not drawn by Illinois legislators with an intent to deny a remedy when a medical injury resulting from negligence occurs. Then, too, my analysis of the sections of the Tort Immunity Act at issue in this appeal buttresses my view. Since the majority in the instant appeal has a different view, I now write my dissent.
Section 6 — 105 of the Illinois Tort Immunity Act provides:
“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.” 745 ILCS 10/6 — 105 (West 1996).
In my view, the title of section 6 — 105 of the Illinois Tort Immunity Act is appropriately titled by West. See 745 ILCS 10/6 — 105 (West 1996); see also Cal. Gov’t Code § 855.6 (Deering 1972). Since section 6 — 105 is derived from section 855.6 of the California Tort Claims Act of 1963 (Cal. Gov’t Code § 855.6 (Deering 1972)) (California Act), it is noteworthy that the Law Revision Commission comments to section 855.6 of the California Act state:
“This section declares an immunity that has been recognized by the New York courts in the absence of a statute. It grants an immunity for failure to perform adequately public health examinations such as public tuberculosis examinations, physical examinations to determine the qualifications of boxers and other athletes, and eye examinations for vehicle operator applicants. It does not apply to, examinations for the purpose of treatment such as are made in doctors’ offices and public hospitals. In those situations, the ordinary rules of liability would apply.” (Emphasis added.) 4 Cal. Revision Comm’n Rep. 801 at 865 (1963).
Another comment made by the California Law Revision Commission is that, “the immunity provided by this section relates only to the failure to make any examination or, if an examination is made, to the ‘adequacy’ of the examination; the section does not provide immunity, for example, where a public employee negligently injures a person while making an examination” Cal. Law Revision Comm’n, Recommendations Relating to Sovereign Immunity, 4 Reports, Rec. & Studies 801 (1963). This comment is also applicable to the Tort Immunity Act. See J. Latturner, Local Government Tort Immunity and Liability in Illinois, 55 Ill. B.J. 28 , 41 (1966).
In construing section 6 — 105, an instructive case is Harvey v. Clyde Park District, 32 Ill. 2d 60 , 203 N.E.2d 573 (1965). In Harvey, a suit was instituted on behalf of Wilborn Harvey, a minor, to recover damages for injuries alleged to have been caused by the negligence of the defendant, Clyde Park District. The defendant moved to dismiss the complaint on the ground that it was immune from liability by reason of section 12.1 of the Park District Code, which provided in pertinent part: “Any park district shall not be liable for any injuries to person or property *** resulting from the negligence of its agents ***.” Ill. Rev. Stat. 1963, ch. 105, par. 12.1 — 1.
The trial court sustained the motion to dismiss. Plaintiff appealed directly to the Illinois Supreme Court, contending that the statute was unconstitutional because it was special legislation in violation of section 22 of article IV of the Constitution of Illinois (Ill. Const. 1870, art. iy § 22) and also because it violated section 19 of article II of that constitution, which provided: “Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property, or reputation ***.” Ill. Const. 1870, art. II, § 19. In Harvey, the Illinois Supreme Court held the 1959 statute, exempting park districts from liability, unconstitutional and reversed and remanded the case.
Notably, in its decision, the Illinois Supreme Court referred to California legislation, stating: “The recent California legislation carves out numerous areas of nonliability, the most important of which also relates to discretionary acts.” Harvey, 32 Ill. 2d at 67 . The reference by the Illinois Supreme Court to California legislation is significant inasmuch as sections 6 — 105 and 6 — 106 of the Illinois Tort Immunity Act were adopted a few months after the Harvey decision. Also, significantly, “The Tort Immunity Act is derived from, and in many respects identical to, the California Act”. See J. Latturner, Local Governmental Tort Immunity and Liability in Illinois, 55 Ill. B.J. 28 , 31 (1966).
Moreover, this case involves a doctor-patient relationship and the special nature of the doctor-patient relationship gives rise to a duty that is independent of the doctor’s position as a public or private employee. See Madden v. Kuehn, 56 Ill. App. 3d 997 , 372 N.E.2d 1131 (1978); Watson v. St. Annes Hospital, 68 Ill. App. 3d 1048 , 386 N.E.2d 885 (1979); Janes v. Albergo, 254 Ill. App. 3d 951, 964 , 626 N.E.2d 1127, 1133 (1973).
While the majority’s construction of section 6 — 105 provides immunity for doctors and nurses in public hospitals who negligently perform examinations for the purpose of treatment, it is undisputed that doctors and nurses who may perform the same negligent acts at a private hospital would be subject to liability. Such a distinction relative to treatment by doctors and nurses in public entities vis-a-vis doctors and nurses in private entities has no rational or reasonable basis. However, in my view, a rational basis does exist to provide immunity to doctors and nurses in public entities providing preventive examinations in order to determine whether persons have diseases that will constitute a hazard to either themselves or others. Such examinations are made in the interest of the public welfare. Also, judicial notice is taken that preventive examinations may be governmentally mandated.
This interpretation is supported by California case law involving section 855.6 of the California Act. See Smith v. County of Kern, 20 Cal. App. 4th 1826, 1835 , 25 Cal. Rptr. 2d 716, 722-23 (1993). In Smith, the court held that since the public employee’s actions were taken to facilitate the delivery of medical diagnosis or care, the immunity did not apply and plaintiff could sustain a cause of action based upon those facts. The court in Smith relied upon the following comment regarding the intended effect of California’s section 855.6:
“ ‘[I]t seems clear that this immunity does not apply to medical examinations made in a doctor’s office or public hospital for the purpose of treatment. In short, it is not a blanket immunity from medical malpractice liability.’ ” Smith, 20 Cal. App. 4th at 1833-34 , 25 Cal. Rptr. 2d at 722 , quoting Cal. Government Tort Liability Practice (Cont. Ed. Bar, 3d. ed. 1992) § 4.84, at 548.
Relative to section 6 — 106(a), the majority also holds that defendants are immune from liability: In so holding the majority, in effect, dismisses and disregards sections 6 — 106(b), (c), and (d). 745 ILCS 10/6 — 106(b) through (d) (West 1996). As a result, in my view, the majority misdiagnoses section 6 — 106(a). 745 ILCS 10/6 — 106(a) (West 1996).
Section 6 — 106 of the Tort Immunity Act states:
“(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.” 745 ILCS 10/6 — 106(a) through (d) (West 1996).
As section 6 — 106(b) plainly states, an immunity is granted only when medical treatment is being “administered] with due care.” 745 ILCS 10/6 — 106(b) (West 1996). Additionally, subsections (c) and (d) each begin with the language “[n]othing in this section exonerates.” 745 ILCS 10/6 — 106(c), (d) (West 1996). The insertion of such language by the legislature is a clear indication that subsections (c) and (d) were meant to further refine and limit the immunity set out in subsection (a). Subsections (c) and (d) each hold local public entities and their employees liable for “negligence” and “negligent or wrongful acts or omissions” once treatment for a specific medical condition has been “undertaken” and is being “administer[ed].” A failure to properly diagnose and treat a medical condition once treatment of that condition has been undertaken is “negligence,” as well as a “negligent act or omission,” and the immunity set forth in subsection (a) does not apply. Finally, the legislature used the words “undertaken to prescribe” in subsection (c), and “administering any treatment” in subsection (d). 745 ILCS 10/6 — 106(c), (d) (West 1996). The legislature’s use of such language clearly indicates that it intended local public entities and their employees to be held liable for negligently caring for their patients once medical treatment had been undertaken. In such a situation, therefore, the immunity set forth in subsection (a) again does not apply.
In light of the above, it is clear that section 6 — 106(a) was not meant to grant a blanket immunity for negligent treatment of a specific medical condition. 745 ILCS 10/6 — 106(a) (West 1996). In the instant case, each of plaintiffs experts was of the opinion that had Cynthia Collins received the treatment she was denied, the likelihood of her recovery would have increased. Here, the admitted evidence with respect to whether local public entities and their employees negligently treated a specific medical condition gives rise to a material question of fact. Since an issue of fact existed, the majority errs in affirming the trial court’s judgment granting defendant’s motion for summary judgment.
I dissent.