An agreement between a university and a teaching hospital that incorporated the 2011 Florida sovereign immunity statute was granted sovereign immunity even though its medical doctor employee provided care to his private patient.

The University of Miami d/b/a Miller School of Medicine (University) entered into a Basic Affiliation Agreement with Public Health Trust d/b/a Jackson Memorial Hospital (Hospital) in 2004. In 2006, Dr. Salerno, an employee of the University, entered into a Memorandum of Understanding with the Hospital, which renewed yearly. The Memorandum referenced the Agreement.

In 2011, the University and the Hospital amended the Agreement to incorporate the amended sovereign immunity statute (768.28, Florida Statutes). The 2004 Agreement covered patients treated at the Hospital who were indigent. The 2011 Agreement covered all patients, indigent or not, who are provided care at the Hospital by the University’s employees. The 2011 Agreement was meant to replace the 2004 Agreement.

Dr. Salerno began treating Ms. Lazzari in 2013 as a private patient at his office in the Hospital. Ms. Lazzari was not an indigent patient. She had her own health insurance. Ms. Lazzari file suit against Dr. Salerno, the Hospital and the University, claiming the original Memorandum related to the 2004 Agreement and all subsequent contracts were related to the 2004 Agreement. Ms. Lazzari claimed that Dr. Salerno did not agree to the 2011 Agreement change, and therefore, as a private patient of Dr. Salerno, the University did not have sovereign immunity.

The Third District Court of Appeals determined that Dr. Salerno’s Memorandum after 2011 incorporated the 2011 Agreement. The Third DCA determined Dr. Salerno was an employee of the University when he provided care to Ms. Lazzari, even though she was a private, non-indigent patient. Therefore, the University had sovereign immunity.

Even though the Third DCA did not address Dr. Salerno’s sovereign immunity, it can be interpreted that if Dr. Salerno was acting as an agent for the University and the University was granted sovereign immunity, Dr. Salerno should be granted sovereign immunity as well.

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