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Florida Dept. of Health v. Dinnerstein

Florida Court of Appeal, Fourth District

December 14, 2011

FLORIDA DEPARTMENT OF HEALTH, an Agency of the State of Florida, Appellant,
ALLAN J. DINNERSTEIN, M.D., P.A., a Florida Professional Association, and Allan J. Dinnerstein, M.D., individually, Appellees.

Rehearing Denied Jan. 19, 2012.

Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hebener, Chief Deputy Solicitor General, Tallahassee, for appellant.

Robert M. Presley and Michael R. Presley of Presley Law and Associates, P.A., Wellington, for appellees.


Appellant, the Florida Department of Health, timely appeals a final summary judgment declaring that the appellees, Dr. Allan Dinnerstein and his professional association, were entitled to sovereign immunity— under a volunteer health care contract and in accordance with the Access to Health Care Act— for causes of action alleged in a related medical malpractice case. The Department claims that the court erred in granting summary judgment because genuine issues of material fact remain. We agree and reverse.

In 2005, Dr. Allen Dinnerstein, M.D., through his corresponding professional association, entered into a contract with the defendant, the Florida Department of Health, whereby he agreed to participate in Florida's Volunteer Healthcare Provider Program. The Legislature enacted this program in section 766.1115, Florida Statutes, to improve the access of indigent residents to health care by offering health care providers immunity from suit for their agreement to offer free health care to indigent residents. See § 766.1115(2), Fla. Stat. (2005). A volunteer provider may not be named as a defendant in any malpractice action where the care is performed under the health care provider's

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contract with the Department. § 766.1115(4), Fla. Stat. (2005).

The statute mandates that " [p]atient selection and initial referral must be made solely by the governmental contractor, and the provider must accept all referred patients." § 766.1115(4)(d), Fla. Stat. (2005). " If emergency care is required, the patient need not be referred before receiving treatment, but must be referred within 48 hours after treatment is commenced or within 48 hours after the patient has the mental capacity to consent to treatment, whichever occurs later." § 766.1115(4)(e), Fla. Stat. (2005). The Department's standard contract, signed by Dr. Dinnerstein, contains language based on the statutory language of section 766.1115(4)(e). It requires that a designated agent of the Department must make the referral pursuant to Patient Referral Form, DH 1032, and the health care provider must obtain the approval of the Department prior to delivery of services. Consistent with the statute, the contract included the statutory language regarding emergency treatment.

The Patient Referral Form, DH 1032, informs the patient that the services of the volunteer health care professional are being provided at no charge and that the state is solely liable for any injuries and damages with its liability being limited by sovereign immunity. The patient must sign the form agreeing to the referral.

Diane Carlson, a nurse employed with the Palm Beach County Health Department, was in charge of the Volunteer Health Care Provider Program. Ms. Carlson testified that when Dr. Dinnerstein signed the contract, he was in private practice. However, Dr. Dinnerstein called Ms. Carlson, informing her that he was going to start working at Bethesda Memorial Hospital and that he was going to draw down on his private practice. Dr. Dinnerstein said that he no longer wanted to accept patients from the network. Nonetheless, Dr. Dinnerstein never withdrew from the network and his volunteer contract was still in effect in March 2007.

In 2007, Ludana Prophete was a patient receiving prenatal care at the Lantana clinic of the Palm Beach County Health Department, a designated agency for the Department. On March 5, 2007, Ms. Prophete arrived by ambulance at Bethesda Memorial Hospital in Palm Beach County, complaining of abdominal pain. This appears to be a self-referral and not one made by the clinic. Dr. Dinnerstein has not claimed that he is covered by immunity for his treatment of Ms. Prophete on this date. A nurse made a diagnosis that Ms. Prophete had potential preeclampsia. Dr. Dinnerstein was the physician on call at Bethesda, and he initially saw Ms. Prophete and rendered some treatment. Upon discharge, Ms. Prophete was instructed to return if she experienced other problems. She was also told to keep her next appointment with the Lantana clinic.

On March 8, 2007, Ms. Prophete went to the Lantana clinic for her appointment, where she was seen by a nurse, Sandra Smith. Based upon her examination and Ms. Prophete's complaints, Smith believed that Ms. Prophete was suffering from preeclampsia, which required immediate delivery. Smith called the Labor and Delivery Unit at Bethesda and notified the clerk of Ms. Prophet's situation. Smith then arranged for an ambulance to take Ms. Prophete to Bethesda, because that is where the clinic routinely sends its patients requiring hospitalization. On a prescription pad which Smith gave to the paramedics, Smith noted Ms. Prophete's vital signs as well as her symptoms. Smith did not know which physician was on duty, nor did she speak to any doctor regarding Ms. Prophete. She has no responsibility

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for referring patients to doctors pursuant to the volunteer ...

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