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Bean v. University of Miami

Florida Court of Appeals, Third District

August 1, 2018

Latoya Bean, et al., Appellants,
University of Miami d/b/a Miller School of Medicine, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from the Circuit Court for Miami-Dade County, Nos. 14-17565 & 15-22968, Samantha Ruiz-Cohen and Jerald Bagley, Judges.

          Creed & Gowdy, P.A. and Bryan S. Gowdy (Jacksonville), for appellant Latoya Bean.

          Center for Constitutional Litigation, PC and Robert S. Peck (Fairfax Station, VA); and Grossman Roth Yaffa Cohen, P.A., and Neal A. Roth and Rachel Wagner Furst, for appellant Fernando Vallecillo, Jr.

          White & Case LLP, Raoul G. Cantero, and David P. Draigh; Fowler White Burnett, P.A., Christopher E. Knight, and Marc J. Schleier, for appellees.

          Before EMAS, FERNANDEZ and LUCK, JJ.

          LUCK, J.

         In 2011, the legislature expanded the immunity in sections 768.28(9)(b) and (10)(f) of the Florida Statutes to cover nonprofit independent universities that agree to provide patient services at government teaching hospitals as part of an affiliation agreement. Ch. 11-219, § 3, at 3345-47, Laws of Fla. Such universities and their employees, the amendment provided, would be treated as agents of the government teaching hospital, and covered by the immunity in section 768.28, to the extent they were providing patient services consistent with the affiliation agreement.

         Pursuant to sections 768.28(9)(b) and (10)(f), the University of Miami Leonard M. Miller School of Medicine entered into an affiliation agreement with the Miami-Dade County Public Health Trust - the government agency that operates Jackson Memorial Hospital. The university, based on the expanded immunity, moved to dismiss the lawsuits of two plaintiffs that were allegedly injured by university doctors who treated them at Jackson hospital. The plaintiffs responded that the amendments to section 768.28 unconstitutionally expanded sovereign immunity; violated the plaintiffs' rights to equal protection, due process, access to courts, and a jury trial; and unconstitutionally pledged the state's credit to a private university. The trial courts found that the expanded immunity did not violate the Florida Constitution. We agree, and affirm the judgments for the university and its doctors.


         Case Number 16-2195: Fernando Vallecillo Fernando Vallecillo was born with a benign tumor on the right side of his face. In January 2014, he went to the university's medical school for an ear-nose-and-throat consultation. There, Vallecillo was referred to Dr. Jason Salsamendi at the university's radiology department. Dr. Salsamendi recommended that Vallecillo have an "embolization procedure." On February 27, 2014, Vallecillo went to Jackson to have the surgery. Dr. Mohammad Elhammady, the surgeon, performed the embolization procedure despite evidence that Vallecillo was not amendable to it. As a result of the surgery, Vallecillo was blinded in his right eye.

         Vallecillo sued Dr. Elhammady, the university, and Jackson (the trust) for medical negligence. The university and Dr. Elhammady answered the complaint, and alleged as an affirmative defense that they were improper defendants because they were "entitled to immunity from liability and suit under Florida Statutes §§ 768.28(9)(a) and (10)(f)."

         In response to the immunity defense, Vallecillo filed a separate complaint for declaratory judgment against the university and Dr. Elhammady. Vallecillo alleged that he had sued the university and Dr. Elhammady for medical negligence, and they "specifically raise[d] sovereign immunity as an affirmative defense" under sections 768.28(9)(b) and (10)(f) of the Florida Statutes. Vallecillo alleged that the provisions violated his Florida and federal constitutional rights to equal protection under the law, due process, access to the courts, the right to trial by jury; the prohibitions against special laws and using the state's taxing power and credit to aid corporations; and the limitations on extending sovereign immunity to private companies. The university and Dr. Elhammady answered and denied the allegations in Vallecillo's declaratory judgment complaint.

         The parties filed cross-motions for summary judgment, and after a hearing, the trial court denied Vallecillo's motion for summary judgment and granted summary judgment for the defendants. The trial court concluded that "[t]he undisputed facts establish that Defendants, a Miller School of Medicine faculty member, and the University itself, fall under the ambit of Fla. Stat. Secs. 768.28(9) and (10)(f)," and are therefore, "entitled to sovereign immunity." Vallecillo has appealed.

         Case Number 16-2221: Latoya and Noah Bean

         In January 2012, Latoya Bean was pregnant, and went to Dr. Nelson Adams for prenatal care. During her prenatal visits between January and June, Bean had indications of preeclampsia (high blood pressure, trace albumin, and elevated protein, creatinine, and liver enzymes). Those indications continued on June 12, when she was finally prescribed medication. As the indications of preeclampsia continued the next day, Bean was admitted to Jackson hospital.

         On June 18, while still in the hospital, Bean's baby showed signs of fetal distress. Dr. Rebekah Valthaty administered Misoprostol to induce birth, even though Misoprostol had not been approved by the Food and Drug Administration for that purpose and the instructions warn that using it could result in birth defects, premature birth, and uterine rupture. After the Misoprostol was administered, the baby's heartbeat was "non-reassuring," and Bean had indications of "placental abruption and/or fetal compromise."

         Still, the doctors waited hours before performing a C-section. Noah Bean was born in the early morning hours of June 19. Baby Noah "required aggressive resuscitation to include stimulation, suctioning and placement on CPAP." He was "limp and suffering significant respiratory failure, requiring intubation." "[A] head ultrasound revealed grade II intraventricular hemorrhage consistent with an anoxic/hypoxic injury." Noah died on the evening of his birth.

         Latoya Bean, on behalf of herself and her son, sued the university and Bean's doctors for medical negligence. The university and doctors moved to dismiss the complaint because they were "immune from suit under Section 768.28(9)(a) and 768.28(10)(f), Florida Statutes, as agents of the Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital." Bean argued in response that sections 768.28(9) and (10)(f) violated the Florida Constitution because the sections: were unauthorized extensions of sovereign immunity to a private enterprise; violated her rights to equal protection and due process; improperly used the state's taxing power and credit for a private enterprise; and were impermissible special laws.

         The trial court granted the defendants' motion to dismiss, concluding that Bean's complaint "establish[ed] that the moving Defendants are entities and/or individuals entitled to immunity from suit under Fla. Stat. Secs. 768.28(9) and (10)(f)." This appeal followed. On the parties' motion, we consolidated Vallecillo and Bean's appeals for oral argument.


         "The question of statutory immunity is a legal question that we review de novo." Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 393 (Fla. 2015). "The constitutionality of a statute is a pure question of law" also "subject to de novo review." City of Fort Lauderdale v. Dhar, 185 So.3d 1232, 1234 (Fla. 2016).


         In 2011, the legislature amended section 768.28, "Waiver of sovereign immunity in tort actions," to "expand[] sovereign immunity" by "providing that certain colleges and universities that own or operate a medical school[, ] or any of its employees or agents providing patient services pursuant to a contract with a teaching hospital are agents of the teaching hospital and are immune from certain liability for torts." Ch. 11-219, Title, at 3343, Laws of Fla. The legislature did this by amending subsection (9) and adding subsection (10)(f).

         Subsection (9) provides that "[n]o officer, employee, or agent of the state or of any of its subdivisions shall 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. (2017). The legislature amended the definition of "officer, employee, or agent" to include "any nonprofit independent college or university located and chartered in this state which owned or operates an accredited medical school, and its employees or agent, when providing patient services pursuant to paragraph (10)(f)." Id. § 768.28(9)(b)2. The new paragraph (10)(f) defined what it meant to be a nonprofit independent university which operates an accredited medical school providing patient services.

[A]ny nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, or any of its employees or agents, and which 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, is considered an agent of the teaching hospital while acting ...

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