Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Sovereign Immunity – A Primer For The UF Health Care Provider

Daniel J. D’Alesio Jr., Esq.
Associate Director, Claims and Litigation, UF Self-Insurance Program
This article published in the April-June 2006 edition is being reprinted for the benefit of  new faculty and residents.
6-3-2 The Concept of Sovereign Immunity   The doctrine of sovereign immunity, also referred to as “Crown immunity,” is grounded in the English common law concept that “the king can do no wrong,” and was not, therefore, subject to claims and suits by his countrymen. In the United States, the doctrine takes on a more practical perspective, recognizing the reality that there is no legal right to sue the sovereign authority for rights and obligations that are conferred by laws made by the same sovereign authority. Accordingly, unless the sovereign agrees, it cannot be sued. In American jurisprudence, the doctrine of sovereign immunity applies not only to the United States government (federal sovereignty), but also to each of the individual states. The immunity enjoyed by the United States and the individual states may be waived, in whole or in part, by federal and state lawmakers, thereby permitting these sovereign entities to be sued. Any waiver of sovereign immunity, however, will be limited to the expressed parameters in the waiver statutes and will be strictly construed by the courts that interpret these statutes.   Limited Waiver of Sovereign Immunity in Florida   The State of Florida enjoys sovereign immunity to the extent that the Florida law permits. 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 of 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 act or wrongful 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 the University of Florida (UF) negligently causes personal injury, sovereign immunity is waived, subject to limitations, and the injured party may assert a claim or file a lawsuit against the University of Florida Board of Trustees.   The Basic Application of the Waiver of Sovereign Immunity to UF Health Care Providers   Within the ambit of sovereign immunity, Florida law affords immunity from personal liability for UF health care providers, when their care and treatment of patients becomes the subject of a claim or lawsuit, provided certain criteria are met.  Specifically, UF health care providers will not be held personally liable for medical negligence if the negligent act or omission occurred while the health care provider was acting within the scope of the health care provider’s UF employment and the provider was not acting in bad faith, or with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. In practical terms, this means that, when a UF health care provider is performing duties within the scope of the provider’s employment with UF 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 money damages that might result from the claim or lawsuit. This presumes, however, that the provider was acting in good faith and was not wanton and reckless, i.e., grossly negligent.  Section 768.28 of Florida Statutes provides further that a state employee or agent may not be named as a “party defendant” in any claim or lawsuit. The University Of Florida Board Of Trustees is, as a matter of law, the proper defendant in any claim or lawsuit alleging medical negligence on the part of a UF health care provider. The practical application of these statutory provisions is illustrated in the Question-and-Answer section of this article.   Limits on Recovery by Claimants and Plaintiffs   Section 768.28 of Florida Statutes not only relieves UF health care 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 University Of Florida Board Of Trustees to a successful claimant is limited to $100,000 per claimant, and the aggregate that may be paid on any claim, regardless of the number of claimants, is limited to $200,000. If, for example, a husband and wife sue the University Of Florida Board Of Trustees in a medical negligence action and the jury awards the plaintiffs $1,000,000, Florida law limits the payment to each claimant to no more than $100,000 and limits the total payment to both plaintiffs to $200,000.  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 University Of Florida Board Of Trustees.  It is rare, however, that claims bills based upon medical negligence incidents are successful.   The Practical Impact of Sovereign Immunity Upon the UF Health Care Provider – Some Common Questions and Answers   Question: A UF 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 simple ignorance on the part of the claimant’s attorney concerning the employment status of the UF 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 investigation, notice of the claim must be sent to the health care provider alleged to be negligent. At the time the notice is sent, it is not uncommon for a claimant‘s attorney to have insufficient information to confirm the actual employer of the health care provider. The claim package sent to the provider is called a “Notice of Intent to Initiate Litigation for Medical Negligence” (NOI). When UF health care providers receive NOIs, they forward them to the Self-Insurance Program (SIP) for action. SIP will investigate the claim, respond to the matters alleged in the NOI, and advise the claimant’s attorney of the UF health care provider’s immune status. The claimant’s attorney will also be advised that Florida law prohibits the naming of the UF provider as a defendant in any lawsuit that may be pursued and that SIP will pursue legal sanctions against the claimant if the UF provider is specifically named as a defendant in future proceedings. If the claimant’s attorney ignores this admonition and files suit naming a UF provider as a defendant, motions will be filed with the court to remove the name of the UF provider as a defendant and to substitute the University Of Florida Board Of Trustees as the proper defendant.   Question: Are UF resident physicians and physician extenders covered by the Florida sovereign immunity statute?   Answer: As is the case with all other state employees or agents, all UF residents and physician extenders, acting within the scope of their university function, are afforded immunity and are not subject to personal liability for their negligent acts or omissions that cause injury to a patient.   Question: Are there any circumstances in which the conduct of a UF health care 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 tortuous or criminal act; (b) committing medical negligence during a time when the provider is not performing duties within the scope of employment with UF; and (c) performing an act or omission that is considered grossly negligent, i.e., an act or omission exhibiting wanton and willful disregard for safety and well-being of the patient. 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 UF.  Although all UF providers are required to seek permission from UF prior to accepting employment outside of the scope of their UF 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 UF 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. Examples of actions rising to the level of gross negligence that would result in a loss of immunity include acts such as being intoxicated while performing a procedure or, while on call, intentionally ignoring repeated pages by the nursing staff to attend to the needs of a critical patient, solely because the provider was preoccupied with personal business.   Question: A physician is appointed to the UF faculty as an attending physician and clinical professor. Prior to her appointment she was a member of a private practice professional association. While serving in her position at UF, she receives an NOI alleging that she was medically negligent in treating a patient while she was in private practice. Does the fact that the physician was a UF employee at the time that she received the NOI render her immune from personal liability for any medical negligence that occurred in her former private practice?   Answer: No. The physician is provided immunity only for those acts or omissions occurring during the course and scope of her employment with UF. 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 her employment with UF, even though she received the NOI when she was employed by UF.   Question: A physician leaves his employment with UF. One year later, he receives an NOI alleging medical negligence for delay in diagnosis and treatment of a patient he examined and treated while he was acting within the scope of his duties at UF.  Is the former UF physician immune from personal liability for the claim of medical negligence involving this patient?   Answer: Yes. The former UF physician is immune from personal liability with respect to any medical negligence claim based upon incidents that occurred at any time that the UF physician was acting within the scope of his employment with UF, even if he received notice of the claim subsequent to terminating his relationship with UF.   Question: Is it true that if a UF health care 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: Although it is true that the UF health care provider will be immune from personal liability, i.e., personally paying money damages as a result of a claim or lawsuit, the provider is not shielded from the administrative consequences of medical negligence. Under current Florida law, for example, a copy of a complaint in a medical negligence lawsuit must be sent to the Florida Department of Health (DOH). Even though the University of Florida Board of Trustees will be the named defendant in a lawsuit involving alleged negligence on the part of a UF health care provider, the “body” of the complaint will most likely contain allegations asserting negligence attributable to particular UF providers for whom the University of Florida Board of Trustees assumes responsibility if any monetary damages are awarded as a result of the suit. Upon receipt of a copy of the complaint, the DOH will review the allegations and may, based upon the review, open an investigation into the licensure of a provider alleged to have been negligent. The ensuing investigation may lead to the provider losing his or her license or may result in lesser sanctions, such as community service, mandatory education, and fines. Additionally, when UF healthcare providers are medically negligent, they may be subject to possible administrative sanctions by UF and by the facility where the negligence occurred.   Question: Are there any unique situations that are not covered in this article that might affect the immune status of a UF health care provider?   Answer: Florida and other states have “Good Samaritan” statutes that provide limited immunity to physicians and other healthcare providers who respond to medical emergencies that occur at accident scenes and during disasters. There are also some unique immunity issues that arise when a UF provider, acting within the scope of his or her UF employment, performs activities for UF outside of the state of Florida. Analysis of these special circumstances is beyond the scope of this current article but will be addressed in a future edition of Risk Rx. However, as you will learn in greater detail, UF health care providers are provided liability protection under these circumstances.   Question: Where may a UF health care provider seek additional information and advice concerning the impact of sovereign immunity upon his or her practice?   Answer: The staffs of the Gainesville and Jacksonville SIP offices are always available to answer questions and address concerns that a UF provider may have concerning sovereign immunity.   Of all the common questions posed, the last may be the most helpful to UF health care professionals. The two SIP offices are staffed with professionals that are ready, willing, and able to assist you and are available on a 24/7 basis. The offices may be reached as follows:   Gainesville: (352) 273-7006 Jacksonville: (904) 244-907