Are Local Agencies Protected by Governmental Immunity Provisions In Cases of Medical Malpractice ?
In Gallagher v. City of Philadelphia, 142 Pa. Commw. 487, 597 A.2d 747 (Pa. Cmwlth. 1991), the plaintiffs commenced a medical malpractice action alleging that the defendants were Commonwealth agencies subject to one of the enumerated exceptions to sovereign immunity.
The defendants filed preliminary objections in the nature of a demurrer, asserting that they were local agencies entitled to governmental immunity.
The court of common pleas sustained the preliminary objections and dismissed the complaint, concluding that the defendants were local agencies, protected by the governmental immunity provisions (which do not contain an exception for medical malpractice).
The Court affirmed on appeal, finding that the plaintiffs' failure to file preliminary objections to the defendants' preliminary objections constituted a waiver of the right to challenge both the premature assertion of immunity and the court's dismissal of the complaint.