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Kemp by Wright v. State

January 17, 1996

DELISHA KEMP, A MINOR, BY HER PARENT AND NATURAL GUARDIAN, DEBRA WRIGHT AND DEBRA WRIGHT IN HER OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
STATE OF NEW JERSEY, COUNTY OF BURLINGTON, RIVERSIDE BOARD OF EDUCATION, AND RIVERSIDE HIGH SCHOOL, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County.

Approved for Publication January 17, 1996.

Before Judges Havey, Conley and Braithwaite. The opinion of the court was delivered by Conley, J.A.D.

The opinion of the court was delivered by: Conley

The opinion of the court was delivered by CONLEY, J.A.D.

Plaintiff Debra Wright (hereinafter referred to as plaintiff), then a high school senior, received a rubella vaccination on April 18, 1975, through a free public vaccination clinic instituted and supervised by defendants and jointly operated by the State and Burlington County's Health Department in response to a measles outbreak. Her daughter, plaintiff Delisha Kemp, was born approximately eight months later with congenital rubella syndrome. It is undisputed that rubella vaccination is contraindicated for females who are pregnant. Defendants concede that at the time of the vaccination clinic, the vaccine was not administered to any female suspected of being sexually active. The initial screening examination of each participant included inquiry as to their sexual activity. In her personal injury lawsuit on behalf of herself and her daughter, plaintiff contends that defendants were negligent in conducting this examination by failing to ascertain her pregnancy before giving her the vaccination. She also contends that she was not warned during the examination that a child conceived within three months of vaccination could suffer severe mental and physical defects. Defendants, all public entities, moved for summary judgment on several grounds, including the immunities under N.J.S.A. 59:6-4 and N.J.S.A. 26:11-2 (now repealed). *fn1 As to all defendants, the motion Judge denied summary judgment on the immunity issues. We granted leave to appeal and now reverse. *fn2

I

We first consider N.J.S.A. 59:6-4 which states:

Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee 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. For the purposes of this section, "public employee" includes a private physician while actually performing professional services for a public entity as a volunteer without compensation. [Emphasis added].

Putting aside the exception for examinations conducted "for the purpose of treatment," N.J.S.A. 59:6-4 applies to examinations conducted "for the purpose of determining whether [the person examined] has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." See for example Delbridge v. Schaeffer, 238 N.J. Super. 323, 364-66, 569 A.2d 872 (Law Div. 1989) (the immunity in N.J.S.A. 59:6-4 protected a DYFS physician whose examination of subsequently abused child's father was alleged to have been negligent).

From one perspective, the rubella vaccination clinic, which included a preliminary examination of each person vaccinated, does not fit precisely within the scope of a public health examination to determine "whether [the person examined] has a disease or physical or mental condition" that would constitute a health hazard. The clinic itself was to vaccinate against measles, not to determine whether the participants had measles. And, thus, the trial Judge initially concluded that N.J.S.A. 59:6-4 did not apply to the rubella vaccination clinic.

On the other hand, plaintiff's suit focuses upon the failures and/or inadequacies of the screening examination conducted of each person to be vaccinated. It appears undisputed that one of the purposes of the examination was to ascertain the sexual activity of the female participants so that the vaccine would not be given to a person who might be at a high risk of harm arising therefrom. The "examination," thus, was a prevaccination interview of each student. Viewed from this perspective, that examination was, indeed, designed to ascertain whether the person being examined had a physical condition, i.e., potential pregnancy, that would constitute a hazard to her and her unborn child in the event she was vaccinated. Compare Sava v. Fuller, 249 Cal. App.2d 281, 292, 57 Cal. Rptr. 312 (Ct. App. 1967) (Cal. Gov't Code § 855.6, California's counterpart to N.J.S.A. 59:6-4, did not apply to examination by State biologist of a plant that might have been ingested by a child at the request of child's doctor and to aid in his diagnosis and treatment of the child) with Lucas v. City Long Beach, 60 Cal. App. 3d 341, 350, 131 Cal. Rptr. 470 (Ct. App. 1976) (Cal. Gov't Code § 855.6 provided immunity to a prison official who failed to obtain a medical examination of an intoxicated prisoner who later committed suicide) and Kravitz v. State of California, 8 Cal. App. 3d 301, 306, 87 Cal. Rptr. 352 (Ct. App. 1970) (Cal. Gov't Code § 855.6 provided immunity to staff of state hospital for its inadequate examination of a person committed as criminally insane and leading to his release).

We consider as well the Comment to N.J.S.A. 59:6-4 that describes the immunity as pertaining not only to the failure to perform adequate "public health examinations, such as [public] tuberculosis ... examinations," but also the failure to perform adequate "physical examinations to determine the qualifications of boxers and other athletes, and eye examinations for vehicle operator applicants." See also Senate Labor, Industry and Professions Committee Statement, No. 524.

The screening examination here was not to determine whether the participants in the vaccination clinic had measles. As we have said, it does not, thus, neatly fit within the "public tuberculosis examination" example set forth in the Comment. But because its scope was to ascertain whether there were any disqualifying conditions for the vaccination, it is comparable to eye examinations for drivers or physical examinations for athletes before they compete. We conclude, therefore, that the examination here which plaintiff alleges was inadequate falls within the scope of the immunity provided by N.J.S.A. 59:6-4.

We next consider whether, nonetheless, the exception contained therein precludes reliance upon the immunity, as the trial Judge concluded. That exception applies to an examination that is conducted "for the purpose of treatment." Was the initial prequalifying examination "for the purpose of treatment?" We are not aided by any precedent in this State. Neither are we particularly helped by California precedent. E.g., Kleinke v. Ocean City, 147 N.J. Super. 575, 579, 371 A.2d 785 (App. Div. 1977). As far as we can tell only one case in California has treated the issue, albeit in the context of whether an AIDS blood test conducted by a medical center employee qualifies as an "examination or diagnosis for the purpose of treatment." Smith v. County of Kern, 20 Cal. App. 4th 1826, 1833, 25 Cal. Rptr. 2d 716, 721 (1993), review denied (1994). Smith did not resolve that issue on the merits. See id. at 1835, 25 Cal. Rptr. 2d at 723 (allowing plaintiff to file an amended complaint alleging negligent performance by medical personnel in taking blood test for the purpose of assisting patient examination or diagnosis). Smith did, however, frame the pertinent inquiry as "whether the public employee's actions were taken to facilitate the delivery of medical diagnosis or care to the individual who isinjured by the employee's activities." Ibid. If they are, the exception is ...


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