The term “sovereign immunity,” originally referred to the English common concept that the government cannot be sued because “the king can do no wrong.” Sovereign immunity bars lawsuits against the state or its political subdivisions for the torts or wrongdoings of officers, employees, or agents of such governments unless the immunity is expressly waived.Article X, §13 of the Florida Constitution recognizes the concept of sovereign immunity and gives the legislature the right to waive such immunity in part or in full by general law. Section 768.28, Florida Statutes, contain a limited waiver of sovereign immunity. Subsection (5) has limited the recovery of any one person to $100,000.00 for one incident and has limited total recovery related to one incident to $200,000.00, §768.29(5), Florida Statute. As of October 1, 2011, the limits were raised to $200,000.00 for one person for one incident and $300,000.00 for all recovery related to one incident.For many years, the University of Miami’s private medical school has sought to obtain sovereign immunity, historically only bestowed upon “the king.” The University’s lobbyist convinced the legislature there has been an overwhelming public necessity to limit this private medical school’s liability for its own negligence (or wrongdoing). Those lobbyists also convinced the legislature that there was no alternative for meeting such public necessity other than to grant this private school sovereign immunity.As a result, the legislature enacted new laws to benefit the University of Miami and other similar private entities. Under §766.1115 Florida Statute, any contract by a medical school to provide comprehensive health services to patients at public hospitals is subject to the statutes of sovereign immunity protection. The law now provides sovereign immunity to the private hospitals just like “the king.” The protections under 768.28(9)(b) Florida Statute, now cover Florida not-for-profit colleges, universities, medical schools and their employees under certain circumstances.Currently, this bill appears to apply to at least six teaching hospitals: Jackson Memorial in Miami, Mt. Sinai Medical Center in Miami Beach, Shands Healthcare at the University of Florida in Gainesville, Shands Jacksonville Medical Center, Orlando Health in Orlando, and Tampa General Hospital in Tampa.These changes are severely one sided. These legislative changes only serve to benefit major private companies including medical schools. What the citizens of Florida can now expect is that when they or their loved ones go to a facility like Jackson Memorial Hospital and are cared for by University of Miami doctors when they are harmed by malpractice, their recovery will be limited to $200,000.00. When the victim of a medical malpractice claim has millions of dollars of medical bills, rather than the negligent and/or responsible parties being accountable, the patient’s medical expenses and other life long expenses will now fall back upon taxpayers through government benefit programs, such as Medicaid. Our tax dollars pay for Medicaid. Instead of holding the negligent party responsible, this new law holds American taxpayers accountable for wrongs they didn’t commit.
This law will likely face constitutional challenges, because the law violates the injured patient’s right of access to courts. Article 1, §21 of the Florida Constitution provides a court shall be open to all for redress for an injury.
One of our responsibilities, as lawyers who fight for justice and accountability, is to notify the public of one sided legislation. Under this law, everyone who enters a hospital may limit his ability to seek redress harms caused by his medical providers. This legislation is fundamentally unfair for there is no legitimate justification for it.
We hope that the courts of this Country will have the courage not to forget the people who need justice most and place responsibility where it belongs, on the wrongdoer. These changes in the sovereign immunity statute are fundamentally unfair and unconstitutional.
If you are interested in this or any other article, you may contact Brett Panter at Panter. Panter & Sampedro. Brett Panter is a partner in the firm of Panter, Panter & Sampedro, P.A., and is a Board Certified Civil Trial Attorney. The offices of Panter, Panter & Sampedro, P.A., are located in Pinecrest at 6950 North Kendall Drive at the Panter Building, on the corner of Kendall and U.S. 1. Brett A. Panter can be reached for questions or comments at (305) 662-6178; Email at bpanter@patnerlaw.com; or at the firm website panterlaw.com.
