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
& Gowdy, P.A. and Bryan S. Gowdy (Jacksonville), for
appellant Latoya Bean.
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
& Case LLP, Raoul G. Cantero, and David P. Draigh; Fowler
White Burnett, P.A., Christopher E. Knight, and Marc J.
Schleier, for appellees.
EMAS, FERNANDEZ and LUCK, JJ.
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.
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
BACKGROUND AND PROCEDURAL HISTORY
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.
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)."
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
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.
Number 16-2221: Latoya and Noah Bean
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
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."
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
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.
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.
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).
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).
(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