November 20, 2020

The Third District Court of Appeal State of Florida (“Florida Appellate Court”), in its opinion filed on October 28, 2020, affirmed that the University of Miami d/b/a Miller School of Medicine (“University”) was entitled to sovereign immunity pursuant to section 768.28, Florida Statutes (2019) for the alleged medical negligence of its physician employee.

The specific issue in the case was whether the University is entitled to sovereign immunity for services rendered by its employee, Dr. Thomas Salerno (“Salerno”), at Public Health Trust d/b/a Jackson Memorial Hospital (“Jackson”), a teaching hospital where the University provides healthcare services. The University argued that pursuant to the terms of its agreement with Jackson, it was Jackson’s agent at the time that Dr. Salerno treated the plaintiff, Morela Lazzari (“Lazzari”), and was entitled to immunity.

The Underlying Facts

In 2013, Lazzari sought treatment, as a private patient, from Dr. Salerno at his office in Jackson. Throughout her treatment by Dr. Salerno and other Jackson physicians, Lazzari alleged that they failed to prescribe anti-coagulants to her, which resulted in disabilities. As a result of that alleged negligence, Lazzari contended that both Jackson and the University are vicariously liable for Dr. Salerno’s actions.

The University pleaded that it was entitled to immunity from liability and suit under sections 768.28(9)(a) and (10)(f), Florida Statutes. 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). Pursuant to section 768.28(10)(f), Florida Statutes, 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.”

The Florida Appellate Court held: “The 2011 BAA [Basic Affiliation Agreement] clearly conferred sovereign immunity upon the University for its services in treating patients at Jackson, pursuant to the 2011 version of section 768.28, Florida Statutes. The 2011 BAA states that the “University and any faculty member . . . or other employee or agent of the University while acting pursuant to this Agreement does so as an agent of the Trust.” Under the terms of the 2011 BAA and section 768.28, Florida Statutes, the University is immune from suit here because Dr. Salerno treated Morela Lazzari while acting as Jackson’s statutory agent. Accordingly, the trial court properly denied Lazzari’s motion for summary judgment, granted the University’s motion and entered final judgment in favor of the University based on its sovereign immunity defense.”

Source Lazzari v. Guzman, No. 3D19-597.

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