Bean v. University of Miami

Third District Court of Appeal
State of Florida

Opinion filed August 1, 2018.
Not final until disposition of timely filed motion for rehearing.
________________

Nos. 3D16-2221 & 3D16-2195
Lower Tribunal Nos. 14-17565 & 15-22968
________________

Latoya Bean, et al.,
Appellants,

vs.

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

Appeals from the Circuit Court for Miami-Dade County, 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.

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 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

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

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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.

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 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

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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.

STANDARD OF REVIEW

“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).

DISCUSSION

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

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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 within the scope of and pursuant to guidelines established in
the affiliation agreement or other contract.

Id. § 768.28(10)(f).

Months after the legislature amended 768.28, the University of Miami

entered into an affiliation agreement with Miami-Dade County’s Public Health

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Trust, which operates and maintains Jackson Memorial Hospital. The affiliation

agreement provided that the university’s medical school, and the school’s faculty,

employees, and agents, would provide patient services at Jackson hospital as

agents of the trust and under the trust’s sole and exclusive control.

There is no factual dispute that the university and its employees and agents

met the requirements of sections 768.28(9)(b) and (10)(f). The parties agree that

the university is a “nonprofit independent college or university located and

chartered in this state which owns and operates an accredited medical school.”

The parties agree that Jackson is a teaching hospital. The parties agree that the

university and the trust entered into an affiliation agreement. And the parties agree

that university employees and agents performed patient services at Jackson

pursuant to the affiliation agreement.

The issue in this case, then, is not whether the university and its doctors met

the requirements of sections 768.28(9)(b) and (10)(f). They did. Instead, the issue

is whether sections 768.28(9)(b) and (10)(f) violate the Florida Constitution. Can

the legislature constitutionally expand immunity to the university and its

employees and agents? (No, says Vallecillo and Bean.) Do sections 768.28(9)(b)

and (10)(f) violate Vallecillo and Bean’s rights to equal protection, due process,

access to the courts, and trial by jury? (Yes, they say.) And did the legislature

unconstitutionally lend the university the benefit of the state’s credit and taxing

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power? (Yes, says Vallecillo and Bean.) We will go through each of Vallecillo

and Bean’s claims that sections 768.29(9)(b) and (10)(f) violate the Florida

Constitution.

Article X, Section 13 of the Florida Constitution

Article X, section 13 of the Florida Constitution provides that “[p]rovision

may be made by general law for bringing suit against the state as to all liabilities

now existing or hereafter originating.” Fla. Const. art. X, § 13. Vallecillo and

Bean contend that the legislature cannot constitutionally expand immunity to the

university and its employees and agents because they are not state actors subject to

state control, they are not funded by the state, and the state is not on the hook for

their liability.

We disagree. The Florida courts, state and federal, have extended section

768.28 immunity to private companies and their employees where there is a

sufficient degree of control retained or exercised by the state entity. Here are three

examples. In Stoll v. Noel, 694 So. 2d 701 (Fla. 1997), the Florida Supreme Court

extended section 768.28 immunity to doctors and their professional associations

that provided medical services to a state-run children’s medical clinic in Broward

County. Id. at 702-04. In Horn v. Volusia County, No. 6:08-CV-18-ORL-19DAB,

2008 WL 977179 (M.D. Fla. Apr. 9, 2008), the Florida federal district court

extended section 768.28 immunity to a prison doctor and his company that treated

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county jail detainees. Id. at *1, 6. And in G4S Secure Solutions (USA), Inc. v.

Morrow, 210 So. 3d 92 (Fla. 2d DCA 2016), the Second District Court of Appeal

extended section 768.28 immunity to a prison transportation company that

transported prisoners from one facility to another. Id. at 93-95.

As the Florida Supreme Court explained, the question of whether an

independent contractor is an “officer, employee, or agent of the state” under

section 768.28(9)(a) “turns on the degree of control retained or exercised by” the

state entity contracting with the private company. Stoll, 694 So. 2d at 703. “One

who contracts to act on behalf of another and subject to the other’s control except

with respect to his physical conduct is an agent and also an independent

contractor.” Id. (quotation omitted).

To determine the degree of control, we look to the contract between the

private company and the state agency, and any statutes or regulations that govern

the relationship between the two. See Horn, 2008 WL 977179, at *6 (reviewing

three provisions of the contract between Prison Health Services and the county to

conclude that the private company was an agent of the state); Stoll, 694 So. 2d at

703 (reviewing the contract between the doctors and children’s medical services

and the Department of Health and Rehabilitative Services regulations to conclude

that the doctors were agents of the state); G4S Secure Sols., 210 So. 3d at 94-95

(reviewing the contract between the prisoner transport company and the county to

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conclude that the company was an agent of the under section 768.28(9)). In

conducting this review, Florida courts have found some private companies and

employees to be under the state’s control such that they are agents of the state for

section 768.28(9) immunity purposes, while other private companies have been

found not to be controlled by the state and therefore not agents for section 768.28

immunity. Compare Stoll, 694 So. 2d at 703-04 (concluding that private doctors

and their professional associations were agents of Children’s Medical Services),

with Jaar v. Univ. of Miami, 474 So. 2d 239, 245 (Fla. 3d DCA 1985) (concluding

that university was not immune because the unambiguous terms of its contract with

the public health trust did not create an agency relationship).

We conducted this agency analysis under almost identical facts in Jaar.

There, as here, the plaintiff was injured at Jackson hospital by a University of

Miami faculty member and three of the university’s medical residents who were

providing medical services to Jackson patients pursuant to an affiliation agreement

between the university and the hospital. Jaar, 474 So. 2d at 241. The injured

plaintiff sued the faculty member, the three medical residents, and the university,

alleging medical negligence. Id. The defendants all claimed they were agents of

the trust and immune under section 768.28(9). Id. We agreed as to the university

faculty member and medical residents. Id. at 244.

The contracts between [the faculty member] and the University
and between the University and the Trust set forth the duties and

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 obligations of the parties and define their legal relationships. [The
faculty member] is employed by the University as a full-time medical
faculty member. The University assigned [him] to head the hospital’s
burn unit pursuant to the terms of contracts between the University
and the Trust. The contracts require the University to provide medical
care to hospital patients and to supervise residents in their treatment of
patients.

The University assumes additional responsibility in the
treatment and care of fee paying patients. The indemnification clause
contained in the contract provides Trust indemnification of the
University for claims arising out of the treatment of non-paying
patients. Conversely, the indemnification clause establishes the
parties’ intent to delegate sole responsibility to the University for the
care of paying patients, such as [the plaintiff].

Id. at 242-43 (footnotes omitted). Because the faculty member and the residents

were the trust’s “employees or agents and [] their negligent treatment of [the

plaintiff] was performed within the scope of their employment,” we concluded

they were “entitled to immunity from liability.” Id. at 244 (citing § 768.28(9)(a),

Fla. Stat.).

As to the university, we agreed it “would be immune only if it were an agent

of the Trust.” Id. at 245 (emphasis added). But we found the university was not an

agent of the trust because

[t]he relationship between the University and the Trust is created by
the clear and unambiguous terms of their contracts which, as a matter
of law, demonstrate the absence of an agency relationship between
them. The University and the Trust are two independent entities
joined for the purpose of providing health and medical services to the
public. Section 1 of the[ir Basic Affiliation Agreement], entitled
“Autonomous Nature of Public Health Trust,” and ensuing sections
specify that neither party acts as agent for the other. In addition, the

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 contract provisions render each party liable for its proportionate share
of the parties’ joint expenses, and demonstrate the parties’ intent to
refrain from entering an agency relationship.

Id. (footnotes and citation omitted). “Thus,” we said, “the University is not

entitled to benefit from sovereign immunity protections.” Id. at 246.

If nothing had changed since 1985, then that would end the matter for

section 768.28 immunity purposes. The university doctors who treated Vallecillo

and Bean pursuant to the affiliation agreement would be agents of the trust, and

therefore, entitled to the immunity protections under sections 768.28(9)(b) and

(10)(f). The university would not be an agent of the trust because the trust would

not have retained or exercised a sufficient degree of control to trigger section

768.28(9) immunity.

But in 2011, the university and the trust entered into a new affiliation

agreement governing their relationship. The 2011 agreement provided that:

 “the University and any faculty member . . . or other employee or agent of

the University while acting pursuant to this Agreement does so as an agent

of the Trust under the sole direction of and under the full control of the

Trust.”

 “the Trust shall exclusively exercise all powers of governance, operation,

management and control, including . . . providing a single standard of

medical care . . . .”

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 the trust’s powers included “[d]etermining and monitoring any and all

activities and the manner of their performance and operation which shall

take place in the Jackson Hospital System, including determining who shall

provide Patient Services to patients and who shall supervise and train

Residents of the Trust.”

 the trust’s powers included “[p]rescribing and enforcing all policies,

Bylaws, Rules and Regulations.”

 university faculty members and employees and agents are “to provide

Patient Services as agents of the Trust pursuant to this Agreement and

pursuant to Trust Guidelines under the Trust’s direction and control.”

 the trust is “responsible for delivering all Patient Services” to Jackson

hospital patients and “classifies each patient according to funding status in

accordance with its policies and procedures.”

 the trust “[s]hall have final authority and responsibility for admitting

patients within the Jackson Health System in compliance with existing

laws.”

 the trust “shall have sole authority and responsibility to allocate resources

within the Jackson Health System.”

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  the trust “[s]hall . . . have final and absolute authority over all care and

treatment provided to patients, and can refuse to allow a course of treatment

for any patient for medical, policy, or budgetary reasons.”

 the trust “[s]hall have responsibility for and authority to supervise, train,

and assign Resident Physicians to provide care to patients.”

 while the university and its employees and agents are providing patient

services at Jackson hospital pursuant to the agreement, they “shall act solely

for the Trust and not for the University.”

 the university’s education of its students and medical research while at

Jackson is “subject to the policies, Bylaws, Rules and Regulations of the

Trust.”

 the trust “retain[s] and exercise[s] full and exclusive authority to credential,

appoint, reappoint, revoke, modify, suspend, and terminate clinical

privileges and membership” on the trust medical staff.

 “the President of the Trust shall have final and exclusive authority to

appoint all Chiefs of Service.”

As to the university doctors sued by Vallecillo and Bean, nothing has

changed for them. Just as they were employees and agents of the trust in Jaar, 474

So. 2d at 244 (“As employees or agents of the Trust, Dr. Ward and the residents

are entitled to immunity from liability.”), they were agents of the trust while

15
providing patient services to Vallecillo and Bean. If anything, the 2011 agreement

gave the trust more control over the university doctors and employees. Compare

id. at 242-43 & nn.2-6 (the affiliation agreement in Jaar), with (R.368-82) (the

2011 affiliation agreement).

As to the university, the 2011 agreement retained and exercised a degree of

control sufficient to make the university the trust’s “agent” for section 768.28(9)(a)

immunity. Just as in Stoll, the university agreed to abide by the trust’s bylaws,

rules, and regulations. See 694 So. 2d at 703 (“CMS requires each consultant, as a

condition of participating in the CMS program, to agree to abide by the terms

published in its HRS Manual and CMS Consultant’s Guide which contain CMS

policies and rules governing its relationship with the consultants.”). Just as in

Stoll, the university agreed that the trust was responsible for providing patient

services; had final authority over all care and treatment; and “could refuse to allow

a course of treatment for any patient for medical, policy, or budgetary reasons.”

See id. (“The HRS Manual and the Consultant’s Guide demonstrate that CMS has

final authority over all care and treatment provided to CMS patients, and it can

refuse to all a physician’s consultant’s recommended course of treatment of any

CMS patient for either medical or budgetary reasons.”). Just as in Horn, the

university agreed that the trust set the standard of care, and had the authority to

prescribe bylaws, rules, and regulations. See 2008 WL 977179, at *6 (“Section

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2.05 is entitled “Standard of Care” and requires PHS to meet or exceed several

standards of care, including the Florida Model Jail Standards.”). Just as in Horn,

the university agreed that the trust would determine the activities and manner in

which patient services were performed at Jackson hospital. See id. (“[T]he state

has authority over the scope of [Prison Health Services’] work.”). And just as in

G4S, the university agreed that the trust would supervise the training of medical

residents; the university would teach its students consistent with trust rules and

regulations; and the trust had the authority to deny privileges to any university

doctor. See 210 So. 3d at 94 (The county “has the ability to have a G4S employee

fired at will.” The county “conducts the training of G4S employees, and the

employees are trained according to [county] procedures.”).

Perhaps the biggest difference between the affiliation agreement in Jaar, and

the 2011 affiliation agreement, is that the 2011 agreement is clear that the

university is the trust’s agent. In Jaar, the bilateral agreement “specif[ied] that

neither party acts as agent for the other.” 474 So. 2d at 245. And the agreement

repeatedly “demonstrate[d] the parties’ intent to refrain from entering an agency

relationship.” Id.

The 2011 affiliation agreement has the opposite intent. The agreement

provided that “the University . . . while acting pursuant to this Agreement does so

as an agent of the Trust,” and “the University . . . [is] deemed to be [an] agent[] of

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the Trust pursuant to this agreement and Trust Guidelines in accordance with F.S.

Section 768.28.” The Florida Supreme Court found a similar acknowledgment of

an agency relationship as support for its conclusion that the private company was

an agent of the state under section 768.28. See Stoll, 694 So. 2d at 703 (“Our

conclusion is buttressed by HRS’s acknowledgement that the manual creates an

ageny relationship between CMS and its physician consultants . . . .”); see also

Horn, 2008 WL 977179, at *6 (“Section 2.03 of the contract demonstrates that the

parties expressly intended to create an agency relationship, apparently for the very

purpose of bringing PHS and Dr. Hager under the protection of section

768.28(9).”).

The 2011 agreement showed that the trust retained and exercised a degree of

control over the university such that it created an agency relationship. Because the

university was the trust’s agent for purposes of providing patient services at

Jackson hospital, the legislature’s decision to expand immunity in sections

768.28(9)(b) and (10)(f) to cover the university as the trust’s agent is consistent

with Stoll, and does not violate article X, section 13 in the Florida Constitution.1

1Our conclusion that the university is the trust’s agent when it is providing patient
services pursuant to the 2011 affiliation agreement is based on the record in this
case. We express no opinion on whether a new affiliation agreement between the
university and the trust, or an altogether different relationship between a private
university and a teaching hospital, would have the government hospital retaining
and exercising the degree of control necessary to create an agency relationship that
would be a constitutional expansion of section 768.28 immunity.

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 Article I, Sections 2 and 9

The Florida Constitution provides that “[a]ll natural persons, female and

male alike, are equal before the law,” and “[n]o person shall be deprived of life,

liberty or property without due process.” Fla. Const. art. I, §§ 2, 9. These are, in

order, our state’s equal protection and due process clauses. Vallecillo and Bean

contend that sections 768.28(9)(b) and (10)(f) violate the equal protection and due

process clauses because they are nothing more than an unconstitutional cap on

medical malpractice damages, and the statutes treat medical malpractice plaintiffs

differently depending on whether they are treated by trust or university doctors.

We rejected the same equal protection and due process arguments in Jaar:

We find no merit in appellants’ argument that due process and equal
protection considerations preclude the application of sovereign
immunity to shield the doctors from liability in this cause. Florida
courts have ruled the immunity statute constitutional when applied to
a physician who, within the scope of his governmental employment,
negligently caused injury to another.

474 So. 2d at 244. The Florida Supreme Court and the other district courts have

also rejected due process and equal protection challenges to section 768.28

immunity. See Cauley v. City of Jacksonville, 403 So. 2d 379, 387 (Fla. 1981)

(“[W]e hold that the statute clearly relates to a permissible legislative objective and

is neither discriminatory, arbitrary, nor oppressive in its application. The statute

does not violate the right to due process . . . . It provides a fair means of recovery

against governmental entities for the negligent acts of their employees and

19
officials. For the reasons expressed, we affirm the trial court and uphold the

constitutional validity of section 768.28(5), Florida Statutes (1977).”); Campbell v.

City of Coral Springs, 538 So. 2d 1373, 1375 (Fla. 4th DCA 1989) (“We also find

no merit in appellants’ claim that the statute is unconstitutional as a denial of equal

protection. The legislature has the discretion to place limits and conditions upon

the scope of the sovereign immunity waiver.”); Jetton v. Jacksonville Elec. Auth.,

399 So. 2d 396, 399 (Fla. 1st DCA 1981) (“As to due process, we are not prepared

to find that the legislature had no rational basis for imposing a $50,000 recovery

limit if that limit was considered sufficient to permit full recovery in the vast

majority of the cases. . . . For the same reasons we find no violation of equal

protection, there being a rational relationship between the statutory classifications

of tort victims and the object of the legislation.” (footnote and citations omitted)).

We must follow Jaar until it has been overruled by the en banc court or the Florida

Supreme Court. See State v. Washington, 114 So. 3d 182, 188-89 (Fla. 3d DCA

2012) (“This panel is not free to disregard, or recede from, that decision; only this

Court, sitting en banc, may recede from an earlier opinion.”).

Article I, Section 21

The Florida Constitution provides that “[t]he courts shall be open to every

person for redress of any injury, and justice shall be administered without sale,

denial or delay.” Fla. Const. art. I, § 21. Vallecillo contends that sections

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768.28(9)(b) and (10)(f) unconstitutionally restrict access to the courts by placing a

cap on damages.

The Florida Supreme Court and the other district courts have rejected

access-to-court challenges to section 768.28 immunity. See Cauley, 403 So. 2d at

387 (“[W]e hold that the statute clearly relates to a permissible legislative objective

and is neither discriminatory, arbitrary, nor oppressive in its application. The

statute does not violate the right to . . . access to the courts . . . . It provides a fair

means of recovery against governmental entities for the negligent acts of their

employees and officials. For the reasons expressed, we affirm the trial court and

uphold the constitutional validity of section 768.28(5), Florida Statutes (1977).”);

State Dep’t of Corrs. v. Koch, 582 So. 2d 5, 8 (Fla. 1st DCA 1991) (“[S]everal

courts have examined the constitutionality and scope of § 768.28(9), Florida

Statutes, and have found that § 768.28(9) did not abolish the right of an injured

person to sue and recover based on the liability of a negligent employee; it merely

required that the action be maintained against the public employer as the sole,

substitute defendant.”);

Campbell, 538 So. 2d at 1374 (“[P]laintiffs have failed to show that they would

have had a right to bring this action prior to adoption of the declaration of rights in

the Florida Constitution. In any event, section 768.28(9)(a) does not abolish causes

of action. Rather, the statute reasonably arranges and restricts the classes of

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potential defendants based on the nature of the claims as part of an overall

statutory scheme.”); White v. Hillsborough Cty. Hosp. Auth., 448 So. 2d 2, 3 (Fla.

2d DCA) (“Appellant forcefully argues that she has been deprived of her right to

“redress of any injury” guaranteed by Article I, section 21, of the Florida

Constitution. . . . In effect, appellant’s cause of action has been limited by a cap

of $50,000 per claimant/$100,000 per occurrence. While this is a matter of

concern, it is not a sufficiently compelling reason to render the statute

unconstitutional. As discussed in Kluger, even where a cause of action is reduced,

as opposed to being destroyed, it is not essential that the legislature provide a

substitute remedy.” (footnote and citation omitted)), cause dismissed, 443 So. 2d

981 (Fla. 1983), cited in Jaar, 474 So. 2d at 244 (“Florida courts have ruled the

immunity statute constitutional when applied to a physician who, within the scope

of his governmental employment, negligently caused injury to another.”). We

must follow Cauley until the Florida Supreme Court overrules it. See State v. Lott,

286 So.2d 565, 566 (Fla. 1973) (“[T]he District Courts of Appeal follow

controlling precedents set by the Florida Supreme Court.”); Hoffman v. Jones, 280

So. 2d 431, 440 (Fla. 1973) (“[A] District Court of Appeal does not have authority

to overrule a decision of the Supreme Court of Florida. . . . [T]he decision of this

Court shall prevail until overruled by a subsequent decision of this Court.”).

Article I, Section 22

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 The Florida Constitution provides that “[t]he right of trial by jury shall be

secure to all and remain inviolate.” Fla. Const. art. I, § 22. Vallecillo contends

that the limit on damages in section 768.28 unconstitutionally deprives him of his

right to have a jury determine damages.

The Florida Supreme Court has rejected a right-to-jury-trial challenge to

section 768.28 immunity. See Cauley, 403 So. 2d at 387 (“While the section does

limit recovery allowable against municipalities, it substantially broadens recovery

allowable against state governmental entities generally. . . . In conclusion, we

hold that the statute clearly relates to a permissible legislative objective and is

neither discriminatory, arbitrary, nor oppressive in its application. The statute does

not violate the right to . . . jury trial . . . . It provides a fair means of recovery

against governmental entities for the negligent acts of their employees and

officials. For the reasons expressed, we affirm the trial court and uphold the

constitutional validity of section 768.28(5), Florida Statutes (1977).”). We are,

again, bound by Cauley until the Court tells us otherwise.

Article VII, Section 10

The Florida Constitution provides that “[n]either the state nor any county,

school district, municipality, special district, or agency of any of them, shall . . .

give, lend or use its taxing power or credit to aid any corporation, association,

partnership or person.” Fla. Const. art. VII, § 10. While there are some

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exceptions, the Constitution generally bans “the assumption by the public body of

some degree of direct or indirect obligation to pay a debt of the third party.” State

v. Hous. Fin. Auth. Of Polk Cnty., 376 So. 2d 1158, 1160 (Fla. 1979). Vallecillo

and Bean contend that sections 768.28(9)(b) and (10)(f) violate this provision by

lending the state’s taxing power and credit to a private university.

We don’t see it. To qualify as an “agent of the teaching hospital,” section

768.28(10)(f) requires that the university enter into “an affiliation agreement or

other contract” to provide patient services to the teaching hospital. §

768.28(10)(f), Fla. Stat. The contract, section 768.28(10)(f) continues, “must

provide for the indemnification of the teaching hospital, up to the limits set out in

[section 768.28], by the agent for any liability incurred which was caused by the

negligence of the college or university or its employees and agents.” Id.

The 2011 affiliation agreement between the university and the trust had such

a provision. The 2011 agreement provided that

To the extent allowed by law pursuant to section 768.28(10)(f),
Florida Statutes, the University shall indemnify the Trust and Miami-
Dade County and their respective Trustees, Board Members,
Commissioners, officers, employees, agents, agencies and
instrumentalities as provided in Chapter 768, Florida Statutes for any
liability incurred, which was caused by the negligence of the
University or its employees and agents. . . .
The University shall be responsible for providing legal representation
with respect to any injury caused or alleged to have been caused by
the University or the employee or agents and shall be responsible for
all legal costs arising out of such representation.

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 Because of the indemnification requirement in the statute, which made its

way into the 2011 affiliation agreement, the state’s taxing power and credit was not

on the line when Vallecillo and Bean were injured. The university agreed to pay

(indemnify) whatever amount that was imposed on the state pursuant to section

768.28, and to pay any attorney’s fees and costs that result from litigation.

Sections 768.28(9)(b) and (10)(f) make it so the state will pay nothing as a result of

its agreement with the university, and the state does not have to give or use its

credit or taxing power to benefit a private entity. The state did not assume the

private university’s debt; sections 768.28(9)(b) and (10)(f) require that the

financial obligation run the other way – from the state to the private university.

There was no violation of article VII, section 10.

CONCLUSION

The legislature’s 2011 amendments to section 768.28, contained in

subsections (9)(b) and (10)(f), did not violate the sovereign immunity, equal

protection, due process, access to courts, jury trial, and private debt provisions of

the Florida Constitution. We affirm the summary judgment for the university and

Dr. Elhammady in case number 3D16-2195, and the judgment for the university

and Drs. Ahmed and Maguire in case number 3D16-2221.

Affirmed.

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