Nurse Wins Immunity on Check of Girl’s Privates

CINCINNATI (CN) - A school nurse's genital examination of a 6-year-old student's genitals did not violate the child's Fourth Amendment rights, the 6th Circuit ruled.

In October 2009, B.H., as she is described in the lawsuit, complained twice in the same week of itching and burning in her genital region while attending Mt. View Elementary School in Johnson City, Tenn.

After hearing about her 6-year-old daughter's first complaint, Melissa Hearring told the school that B.H. suffered from chronic bladder infections.

On the day of the second complaint, the school's secretary left a new message with Hearring and told Karen Sliwowski, the school nurse, B.H. complained that she "had pain when urinating, had trouble sitting and walked funny."

Sliwowski and the secretary took B.H. into a private bathroom and had the girl pull down her pants and underwear. By her own deposition testimony, Sliwowski then "did a visual check to see if the student had any reddened or irritated areas along her legs, and inner thigh area that could have been causing her discomfort."

The nurse said she then asked B.H. to spread "her labia to check for redness," but that she did not touch B.H. during the examination.

Claiming that the exam "confused, humiliated and frightened" her daughter, Hearring sued Sliwowski and the Metropolitan Government of Nashville-Davidson County.

A federal judge denied both defendants' motions for summary judgment, finding that the examination violated B.H.'s constitutional rights, and that Sliwowski was not entitled to qualified immunity.

Reversing that decision, a three-judge panel of the 6th Circuit found that precedent had not clearly established whether the Fourth Amendment applies to the actions of a school nurse when she attempts to provide medical care to a student.

In finding otherwise, the lower court improperly relied on strip-search rulings, the panel noted.

"In its decision denying Sliwowski qualified immunity, the district court focused on the severe intrusion into B.H.'s privacy interests, noting that prior precedent made clear that 'ordinary common sense' puts school administrators on notice that a search of a student's naked body 'gross offend[s]' the student's sense of decency, self-respect, and bodily privacy," Judge Karen Moore wrote for the panel.

"The district court concluded, following the strip-search cases, that 'the fundamental dignity of a young person's body is so obvious' that school officials had fair notice that a strip-search of a student 'without justification' is improper," Moore added (emphasis in original). "We do not disagree. Nonetheless, a critical factor distinguishes this case from the more typical strip-search cases: namely, it is clear that Sliwowski's visual inspection of B.H.'s genital area was not an investigation for contraband, but rather was an attempt to assess B.H.'s medical condition.

Continuing, Moore said that "what is not obvious from existing authority is whether this kind of medically motivated visual examination constitutes a search subject to the Fourth Amendment standards developed in the strip-search case law. This legal question, whether a visual examination conducted for medical purposes by a medical professional falls within the definition of 'search' for Fourth Amendment purposes, is critical, because the Fourth Amendment's protections are not triggered until a search occurs."

The 10-page decision notes that there is no Supreme Court precedent on the matter, but that "we previously held that the Fourth Amendment did not apply to the actions of paramedics responding to a 911 call who 'were not acting to enforce the law, deter or incarcerate,' but rather were acting to 'provide medical aid.'"

Moore also scolded the lower court for basing its decision on three out-of-circuit cases, including Tenenbaum v. Williams, a 2nd Circuit ruling from 1999 involving a search conducted as part of an investigation into possible child abuse, and Jenkins ex. rel Hall v. Talladega City Board of Education, which the 11th Circuit published in 1997.

After finding that these cases missed the mark, Moore focused on the third decision that the lower court explored, Dubbs v. Head Start Inc., which the 10th Circuit resolved in 2003.

Dubbs "involved medical examinations, including genital examinations, of pre-school children without parental consent," according to the ruling.

"The Tenth Circuit held that the medical examinations constituted searches under the Fourth Amendment," Moore wrote. "However, this holding was not 'so clearly foreshadowed by applicable direct authority as to leave no doubt' in Sliwowski's mind that her examination of B.H. would be held unconstitutional by this court. Specifically, the Tenth Circuit's holding that the medical examinations were searches under the Fourth Amendment law is not obvious under this court's precedent, and it is in direct conflict with decisions of other courts of appeal."

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