Liability Protections and Frequently Asked Questions

Authorization for Self-Insurance ProgramsFAQs: Sovereign Immunity in Florida & NICAStudentsSummary of Conditions Occurrence Based Coverage Self-Insurance Program Primary Protection LimitsExternal ActivitiesGood Samaritan Acts and Pre-Approved Community ServiceCollection of Social Security Number InformationMost Frequently Requested Liability Coverage Information

Authorization for Self-Insurance Programs

The Florida Board of Governors (FBOG), pursuant to Section 1004.24, Florida Statutes, created self-insurance programs to provide comprehensive general liability protection, including professional liability protection, for the universities Board of Trustees (BOT), employees and agents of the BOT, and affiliated not-for-profit corporations.  The primary mission of these self-insurance programs is to respond to claims and provide loss prevention and patient safety assistance to BOT health science centers and colleges of medicine.  Currently, there are FBOG self-insurance programs at the University of Florida (the University of Florida J. Hillis Miller Health Center Self-Insurance Program), University of South Florida (the USF Health Sciences Center Self-Insurance Program), Florida State University (FSU College of Medicine Self-Insurance Program), University of Central Florida (UCF College of Medicine Self-Insurance Program), Florida International University (FIU College of Medicine Self-Insurance Program), and Florida Atlantic University (FAU College of Medicine Self-Insurance Program).  The FBOG authorization for these programs is found in FBOG Regulation 10.001.

Limited Waiver of Sovereign Immunity in Florida

The State of Florida has sovereign immunity codified by Florida law. Section 13 of Article X of the Florida Constitution authorizes the state legislature to enact laws permitting claims and lawsuits to be brought against the state. The provisions of Section 768.28, Florida Statutes, set forth the specific conditions limiting the extent to which the state waives sovereign immunity in tort actions, including medical negligence claims and litigation. This statute permits the state to waive sovereign immunity, to a limited extent, when personal injury or death was caused by the “negligent or wrongful act or omission” of any employee of the state, state agency, or state subdivision while the employee or agent was “acting within the scope of the employee’s office or employment.” The statute provides that the state, for itself and for its “agencies and subdivisions,” waives sovereign immunity for liability for torts, but only to the extent specified in this statute. The statutory reference to “agencies and subdivisions” includes independent establishments of the state, such as state university Boards of Trustees. Accordingly, when an employee of a state university negligently causes personal injury, sovereign immunity is waived, subject to limitations, and the injured party may assert a claim or file a lawsuit against a state university Board of Trustees.

 

The Basic Application of the Waiver of Sovereign Immunity to Healthcare Providers

Within the ambit of sovereign immunity, Florida law affords immunity from personal liability for healthcare providers when their care and treatment of patients becomes the subject of a claim or lawsuit, provided certain criteria are met. Specifically, healthcare providers will not be held personally liable for medical negligence, if the negligent act or omission occurred while the healthcare provider was acting within the scope of the provider’s employment. In practical terms, this means that when a healthcare provider is performing duties within the scope of the provider’s employment, and the provider’s care is alleged in a claim or lawsuit to have been negligent, the provider will not be held responsible personally for any monetary damages that might result from the claim or lawsuit. The State of Florida and, in particular, a state university Board of Trustees are, as a matter of law, the proper defendants in any claim or lawsuit alleging medical negligence on the part of a healthcare provider. The practical application of these statutory provisions is illustrated in the Question-and-Answer section below.

 

Limits on Recovery by Claimants and Plaintiffs

Section 768.28, Florida Statutes, not only relieves healthcare providers of personal liability for negligent acts or omissions occurring within the scope of their duties, the statute also limits the amount of money payable by the state to those injured as a result of such negligence. The amount of monetary damages payable by the Board of Trustees to a successful claimant is limited to $200,000 per claimant, and the aggregate that may be paid on any occurrence, regardless of the number of claimants, is limited to $300,000. In order for the claimants to recover damages in excess of these statutory limits, they would need to pursue a claims bill in the Florida Legislature. The Florida Legislature can award recompense without monetary limits, which must be paid by the Board of Trustees.

 

The Practical Impact of Sovereign Immunity Upon the Healthcare Provider: Some Common Questions and Answers

 

A faculty physician is named as a defendant in a Notice of Intent to Initiate Litigation for Medical Negligence. How can this happen if Florida law prohibits state employees from being named defendants in claims and suits?

Answer: The most common reason for this occurrence is simply unfamiliarity on the part of the claimant’s attorney concerning the employment status of the physician. Florida law requires that, before a claimant may legally file a medical negligence lawsuit, the claimant (normally through the claimant’s attorney) must conduct a good faith investigation of the facts giving rise to the claim. After the investigation, notice of the claim must be sent to the healthcare provider that is alleged to have been negligent. The claim package sent to the provider is called a “Notice of Intent to Initiate Litigation for Medical Negligence” (NOI). When a provider receives a NOI, he/she should forward it to their Self-Insurance Program (SIP) for action. SIP will investigate the claim, respond to the matters alleged in the NOI, and inform the claimant’s attorney of the provider’s immune status. The claimant’s attorney will also be advised that Florida law prohibits the naming of the provider as a defendant in any lawsuit that may be pursued and that SIP can pursue legal sanctions against the claimant if the provider is specifically named as a defendant in future proceedings. If the claimant’s attorney ignores this admonition and files the suit naming a provider as a defendant, motions will be filed with the court to remove the name of the provider as a defendant and to substitute the Board of Trustees as the proper defendant.

 

Are resident physicians and physician extenders covered by the Florida sovereign immunity statute?

Answer: Yes. As is the case with all other state employees or agents, all residents and physician extenders, acting within the scope of their state university function, are afforded immunity and are not subject to personal liability for their negligent acts or omissions that cause injury to a patient.

 

Are resident physicians with appointments at the VA immune from personal liability?

Answer: Yes. Courts have accepted that residency physicians with appointments from the VA under 38 U.S.C 7405 or 7406, while acting within the course and scope of their appointment, are personally immune from suit and covered by the Federal Tort Claims Act.

 

Are resident physicians assigned to private hospitals or clinics through an affiliation agreement immune from personal liability?

Answer: Yes. Residents assigned to a private hospital or clinic, while acting within the scope of their state university function, are afforded immunity and are not subject to personal liability for their negligent acts or omissions that cause injury to a patient. This protection does not extend to the private hospital/clinic preceptor; these individuals and entities can best protect themselves from allegations of apparent agency by ensuring that patients receive and sign a Notice of Limited Liability, pursuant to Section 1012.965, Florida Statutes.

 

Are there any circumstances in which the conduct of a healthcare provider might result in the loss of immunity from personal liability?

Answer: Yes. The more common occasions where immunity is lost include: (a) committing an intentionally tortious or criminal act; (b) committing medical negligence during a time when the provider is not performing duties within the scope of employment; and (c) acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Providers who commit intentional acts of misconduct, such as sexual assault, battery, and defamation of character, are not immune from personal liability. Some providers engage in patient care outside of their duties with the state university. Although these providers are required to seek permission from their state university prior to accepting employment outside of the scope of their state university employment, they are not immune from personal liability for any negligence on their part that occurs during the course and scope of outside employment. The mere fact that the state university has granted permission to the provider to engage in outside employment does not afford the provider immunity for negligent acts when engaging in those activities.

 

When appointed to a state university BOT faculty solely to supervise, educate, and train BOT fellows, residents, and/or students, are private physicians covered by the Florida sovereign immunity statute for alleged negligent acts or omissions of those BOT fellows, residents, and/or students?

Answer: Yes.  Private physicians appointed by a state university Board of Trustees (BOT) to supervise, educate, and train state university BOT fellows, residents, and/or students have a limited personal immunity as set forth in Section 768.28(9), Florida Statutes.  The limited personal immunity of Section 768.28(9), Florida Statutes, protects private physicians with BOT appointments for claims of vicarious liability (respondeat superior) arising from alleged negligent acts or omissions of the BOT fellows, residents, and/or students.  The exclusive remedy for alleged negligent acts or omissions of BOT fellows, residents, and/or students is an action against the BOT.

The BOT appointment does NOT trigger the limited liability of Section 768.28(9), Florida Statutes, for patient care personally provided by appointed private physicians.  A private physician is solely responsible for the care and treatment provided and must individually satisfy Florida’s professional financial responsibility requirements applicable to physicians.

 

A physician is appointed to a state university BOT faculty as an attending physician and clinical professor. Prior to the appointment, the physician was a member of a private practice professional association. While serving in the position at the state university, the physician receives an NOI alleging medical negligence in treating a patient while in private practice. Does the fact that the physician was an employee at the time the NOI was received afford immunity from personal liability for any medical negligence that occurred in the former private practice?

Answer: No. The physician is provided immunity only for those acts or omissions occurring during the course and scope of employment with the state university. There is no immunity from personal liability for acts or omissions occurring at times and under circumstances when the physician was not acting within the scope of employment with the state university, even though the NOI was received during employment by the state university.

 

A physician leaves employment with the state university. One year later, an NOI is received alleging medical negligence for delay in diagnosis and treatment of a patient examined and treated while acting within the scope of duties at the state university. Is the former state university physician immune from personal liability for the claim of medical negligence involving this patient?

Answer: Yes. The former state university physician is immune from personal liability with respect to any medical negligence claim based upon incidents that occurred at any time that the state university physician was acting within the scope of employment with the state university, even if the NOI was received after the termination of the relationship with the state.

 

Is it true that if a state university provider is afforded sovereign immunity, he or she will not be subject to any consequences if a claim or lawsuit alleging medical negligence on the part of the provider is resolved in favor of the claimant?

 Answer: No. Your actions may be reviewed by your state licensing board and adverse administrative action may be taken.  Also, if a payment is made in resolution of the claim, you may also be reported to a state and/or national data bank including, but not limited to, the Florida Office of Insurance Regulation.

 

Are there any unique situations that have not been covered that might affect the immune status of a state university provider?

Answer: Yes. Florida and other states have “Good Samaritan” statutes that provide limited immunity to physicians and other healthcare providers who respond to medical emergencies. There are also unique immunity issues that arise when a healthcare provider, acting within the scope of his or her state university employment, performs pre-approved activities outside the State of Florida.

 

Does the sovereign immunity afforded to state universities Boards of Trustees extend to university direct-support organizations (DSO) or other instrumentalities of the state?

Answer: Yes.  As recently as March 2015, the Florida Supreme Court reinforced that sovereign immunity extends to organizations closely related to state universities in a case involving a state university athletic association. The Court cited the definition of “state agencies and subdivisions” entitled to sovereign immunity to include, among others: independent establishments of the state, including state university boards of trustees, and corporations primarily acting as instrumentalities or agencies of the state.

Universities are constitutionally-created state agencies or subdivisions of the state entitled to limited sovereign immunity. Additionally, corporations primarily acting as instrumentalities of independent establishments of the state are included within the definition of “state agencies or subdivisions.”  Therefore, if an organization is primarily acting as an instrumentality of a state university, it is a state agency or subdivision entitled to limited sovereign immunity.

Organizations primarily acting as instrumentalities of the state include entities that may be referred to as state university direct-support organizations. A state university DSO is defined by statute as a not-for-profit Florida corporation “operating in a manner consistent with the goals of the state university and in the best interest of the state.”

What is the State of Florida NICA program and how does it affect me as a physician and my coverage provided by the Self-Insurance Program (SIP)?

Answer: The Florida Birth-Related Neurological Injury Compensation Association (NICA) manages the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan). In general, under provisions of Florida law, the NICA Plan provides compensation for the care of infants born with qualifying neurological injuries and their parent(s). NICA is the exclusive, no-fault, legal remedy for the types of injuries outlined in the statute, if the involved healthcare providers have met the NICA notice and annual financial assessment requirements. Except in limited circumstances, civil lawsuits for medical malpractice may not be brought in cases meeting NICA criteria. The NICA Fund is a State of Florida trust fund supplemented by other government programs and  supported by providers through annual fee assessments. Currently, the annual assessment amounts for physicians, except those excluded by certain statutory exceptions, are: $5,000 for obstetricians who wish  to become “participating” physicians within the NICA exclusive remedy protections. Obstetricians who do not pay the assessment, and are not otherwise excluded, will not be afforded NICA’s protections, and will be subject to civil lawsuits for medical malpractice. By participating in the NICA Plan, providers help control cost of professional liability coverage for the University’s obstetrical programs. If NICA declines to accept a claim, SIP coverage applies if the care provided was within course and scope of BOT employment and not deemed reckless. A requirement of SIP coverage is that all eligible healthcare providers are active NICA participants and annually provide SIP with current NICA coverage verification.

Additional information related to NICA can be found at the following website link: https://www.nica.com/index.html

Who pays for the NICA assessment?

Answer: Unless excluded by statutory exception, all physicians who are not OB/GYN specialists pay their own assessment of $250 annually. Non-exempt obstetricians must pay annual assessments of $5,000 to become “participating” physicians within the NICA exclusive remedy protections. This assessment is paid annually, by either the physician/physician employer/practice site, and is not a part of SIP premiums. SIP is required to maintain proof of NICA coverage annually for all eligible participants, and will assist in ensuring the NICA assessments are timely paid, if requested.

 

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Students

Students of colleges protected by the SIPs are covered for:

All clinical rotations and electives that are pre-approved as part of the student’s curriculum,

External educational activities that are part of an approved course of study or required by their degree program, and

Extracurricular training programs and activities (non-practicum) pre-approved by the Dean of their respective college.

Summary of Conditions

Protection is subject to the terms and conditions of §768.28, Florida Statutes.

The liability of the BOT for the negligent acts and omissions of its employees and agents committed within the course and scope of their employment is limited to $200,000 per claim or judgment and $300,000 for all claims or judgments arising out of the same incident or occurrence.

The BOT limits of liability may not be stacked, either by the number of providers or the number of state agencies or subdivisions involved in an incident.  If, for instance, three physicians are involved in a surgical procedure, one from the BOT, one from the Department of Corrections, and one from the Department of Health, the most that can be paid to a single claimant is $200,000; the most that can be paid to 2 or more claimants is $300,000. 

Faculty, residents, clinical fellows, and students are provided protection while on official assignment outside the State of Florida.

BOT employees and agents participating in pre-approved community service activities, or who render emergency care or treatment, do so in their individual capacity and may not be subject to the immunities of § 768.28, F.S.  Nonetheless, they are provided individual, personal coverage by their SIP.  Please check with your department chair or with SIP Insurance Services for pre-approval requirements and applicable limits of liability. 

All SIP coverages are applicable worldwide; they are not restricted to Florida or the United States.

Occurrence-Based Coverage

The professional and general liability protection provided by your SIP is occurrence based, meaning the SIP covers a claim based on when it occurred, not when the claim is actually filed, even if they are asserted after your termination date.  Accordingly, if an incident occurs within the course and scope of employment with the BOT, the claim is covered by the SIP even if the employee subsequently terminated his/her employment. A student of protected colleges at each university is covered for all clinical rotations and electives that are approved as part of the student’s curriculum.

Self-Insurance Program Primary Protection Limits

The described protection applies to the negligent acts and omissions of employees and agents only when acting within the course and scope of officially assigned responsibilities. Protection shall also extend to duly authorized off-campus assignments. However, as noted in §768.28(9) F.S., you do not have immunity or protection with respect to reckless and wanton acts, such as battery or sexual assault. Such conduct is not considered to be within the scope of employment.

Faculty, Resident, or Healthcare Provider Employee:

  • Limits:
    • $200,000 per claim / $300,000 per occurrence
  • Limits prior to October 1, 2011:
    • $100,000 per claim / $200,000 per occurrence

Student:

  • Limits:
    • $1,000,000 per occurrence
    • Please contact your SIP Insurance Services department at 352-273-7006 for limits prior to October 13, 2014.

External Activities

All faculty, both part-time and full-time, who desire to engage in external activities, including outside employment or self-employment of any nature, MUST obtain pre-approval of the specific activity. The faculty member must complete and submit a specific request for each separate activity.  Community Service pre-approval request forms can be found on your university SIP Coverage Forms page located under the Participants Resource section of the SIP website.  Outside Activities Requests must be submitted and routed through the designated process within your college.  

When participating in outside employment, you are doing so in your capacity as a private citizen and not as an employee of the University of Florida, Florida State University, University of Central Florida, Florida Atlantic University, or Florida International University. As such, you will NOT have SIP coverage/protection extended to you.

Residents must obtain pre-approval for non-programmatic clinical activities, such as moonlighting at a facility not covered by your SIP.

NOTE:  Employee requests to serve as an expert witness testifying against the State of Florida or its agencies or subdivisions, and their primary health care affiliates, represents a prohibited conflict of interest.  Specific questions related to these activities should be directed to your university Department of Human Resources, Office of General Counsel, or SIP.

Good Samaritan Acts and Pre-Approved Community Service

Employees of participating entities have claim protection for their acts as a Good Samaritan as defined by §768.13, F.S., and for when they engage in approved community service activities. A Note of Caution: Protection for community service activities is subject to pre-approval in writing by your department chair, the Dean of your college, and by the SIP Administrator or SIP designee.

The pre-approval request form can be found on your university’s Coverage Forms page found under the Participants Resource section of the SIP website.

Collection of Social Security Number Information

The Florida Legislature has updated the Sunshine Law (§119.071(5), F.S.) regarding the use, collection, and requests for Social Security numbers by state agencies. Please be advised the use and collection of Social Security numbers are imperative for the performance of SIP legal duties and responsibilities.

Most Frequently Requested Professional and General Liability Coverage Information

If you are in need of additional information, and/or assistance in reporting claim and/or litigation history, please call 352-273-7006 or 844-MY FL SIP and ask to speak with Insurance Services.

Insurance Carrier:
Depending on your employer, you are covered by one of the five programs listed below.

  • University of Florida JHMHC Self-Insurance Program
  • Florida State University College of Medicine Self-Insurance Program
  • Florida International University College of Medicine Self-Insurance Program
  • Florida Atlantic University College of Medicine Self-Insurance Program
  • University of Central Florida College of Medicine Self-Insurance Program

Address:
PO Box 112735
Gainesville, FL 32611-2735

Contact:
(352) 273-7006 -or- 844-MY FL SIP  (Office Mail Line)
(352) 273-5424 (Facsimile)

Policy #:
N/A (Self-insurance)

Type of Coverage:
Occurrence-based

Limits of Liability:
$100,000 per claim / $200,000 per occurrence / No aggregate (Prior to Oct. 1, 2011)
$200,000 per claim / $300,000 per occurrence / No aggregate (As of Oct. 1, 2011)

Tail Coverage:
Not necessary with occurrence-based coverage

Effective Date:
Practitioner date of hire (XX/XX/XXXX)

Expiration Date:
Practitioner date of termination (XX/XX/XXXX)