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Professional Liability

3rd DCA Confirms Sovereign Immunity Applies to Private Entities Providing Healthcare to State Institutions

In Lazzari v. Guzman, M.D., No. 3D19-597, 2020 WL 6302405(Fla. 3d DCA Oct. 28, 2020), the Third DCA upheld a trial court’s ruling that the University of Miami Miller School of Medicine (“UM”) was entitled to sovereign immunity from a medical malpractice action based on treatment a UM employee rendered at a state teaching hospital. This case is a reminder for private entities that provide healthcare at state institutions to consult Florida Statute § 768.28, Florida’s sovereign immunity statute, to ensure that they are protected from liability.

Two subsections of Florida Statute § 768.28 are at play in this case: § 768.28(9)(a) and § 768.28(10)(f). Pursuant to § 768.28(9)(a), agents acting on behalf of the State cannot “be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function.” § 768.28(9)(a), Fla. Stat. (2019). Also, pursuant to § 768.28(10)(f), a private medical school and its physicians are agents of the State when the institution is a “nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, … and … has agreed in an affiliation agreement or other contract to provide, or permit its employees or agents to provide, patient services as agents of a teaching hospital” and is “acting within the scope of and pursuant to guidelines established in the affiliation agreement or other contract.” § 768.28(10)(f), Fla. Stat. (2019).

In this case, Co-defendant UM provided healthcare services to co-defendant Jackson Memorial Hospital’s teaching hospital pursuant to an agreement. The agreement covered the care of all patients and provided that all UM facilities and employees acting pursuant to the agreement do so as agents of Jackson. The agreement included the terms required by § 768.28.

In 2019, Morela Lazzari sought treatment from co-defendant Dr. Salerno at his office in Jackson. At this time, Dr. Salerno was a faculty member and employee of UM.  Maria Lazzari, as the guardian for Morela, initiated this medical malpractice action against UM, Jackson, and others. She alleged that throughout Morela Lazzari’s treatment Dr. Salerno and other Jackson physicians failed to prescribe anticoagulants, resulting in disabilities. Maria Lazzari contended that both Jackson and UM were vicariously liable for Dr. Salerno’s actions. UM moved for summary judgment arguing that it was entitled to immunity from liability and suit under Sections  768.28(9)(a) and (10)(f) based on its contract with Jackson. The trial court granted that motion, finding the terms of the agreement controlled and the UM had sovereign immunity from Lazzari’s suit.

Third DCA Weighs In

Maria Lazzari appealed the trial court’s order granting UM summary judgment. UM argued that pursuant to the terms of its agreement with Jackson, it was Jackson’s agent at the time that Dr. Salerno treated Morela Lazzari and was entitled to immunity. The Third DCA agreed. The Court examined the terms of the agreement and found that it clearly conferred sovereign immunity upon UM for its services in treating patients at Jackson pursuant to Section 768.28. It found that under the terms of the agreement and Section 768.28, UM was immune from suit because Dr. Salerno treated Morela Lazzari while acting as Jackson’s statutory agent.

A major takeaway from the case is that when the Florida Legislature amended Section 768.28(10) (f), UM and Jackson revisited their original agreement and amended it to ensure that UM would be entitled to sovereign immunity.  This foresight allowed UM to be entitled to sovereign immunity in this case.

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