PAMELA WHITE, APPELLANT,
v.
HILLSBOROUGH COUNTY HOSPITAL AUTHORITY AND JOHN L. VANDERSCHILDEN, M.D., APPELLEES
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Pamela White appealed a trial court's dismissal of her negligence action against a state employee doctor, challenging the constitutionality of Florida's sovereign immunity statute that bars suits against state employees acting within the scope of employment. The court affirmed the statute's constitutionality, holding that the legislature may immunize state employees from personal liability by substituting the state as the defendant.
Section 768.28(9) is constitutional. The legislature may immunize state employees from personal liability for ordinary negligence by substituting the state and its agencies as the defendant, thereby converting the cause of action rather than destroying it. The statutory cap on damages does not render the statute unconstitutional.
[1] A state employee acting within the scope of their employment is immune from negligence actions unless they acted with malicious purpose or wanton and willful disregard of…
[2] The legislature may abolish a common law right of action if it provides a reasonable alternative remedy, but this is not strictly required if the cause of action is merel…
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Join FLexlaw to unlock all legal intelligence“the legislature has merely substituted the state and its agencies, which previously could not be sued because of sovereign immunity, for the individuals who could have been sued. Thus, appellant's cause of action has not been destroyed but has been converted to an action against a state agency.”
Establishes the court's reasoning that the statute converts rather than eliminates the cause of action
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Join FLexlaw to unlock all legal intelligencePamela White suffered injuries from a surgical procedure performed by Dr. John L. Vanderschilden in August 1980 at Tampa General Hospital, operated by…
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SCHEB, Judge.
Appellant challenges the trial court’s order upholding the constitutionality of section 768.28(9), Florida Statutes (Supp.1980), ( which precludes negligence actions against 1 state employees acting within the scope of their employment. We affirm.
Appellant Pamela White alleged that she suffered injuries from a surgical procedure performed on her in August 1980 in Tampa General Hospital which is operated by Hillsborough County Hospital Authority. Appellant charged that her injuries resulted from the negligence of John L. Vander-schilden, M.D., while he was acting in the scope of his employment with the appellee hospital.
The trial court granted Dr. Vanderschil-den’s motion to dismiss and entered final judgment in his favor on the basis of section 768.28(9). That statute bars a suit against an officer or employee of the state or any of its subdivisions where the employee is acting in the scope of employment, unless he or she acted with malicious purpose or with wanton and willful disregard of another’s rights. The trial court’s order expressly upheld the constitutionality of section 768.28(9).1
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. She contends that section 768.28(9) is unconstitutional, because it makes suit against the state the exclusive remedy and eliminates any cause of action for simple negligence against state employees acting within the ' scope of their employment. The legislature’s failure to provide reasonable alternatives for recovery by an injured person, she .claims, renders the statute unconstitutional. She relies principally on Kluger v. White, 281 So. 2d 1 (Fla.1973). In Kluger the supreme court held that absent “overpowering public necessity” the legislature may not take away a vested right without providing a reasonable alternative “to protect the rights of the people of the State to redress for injuries.”
We are not persuaded by appellant’s argument. Strong policy reasons support the legislative immunization of state employees from personal liability. State, Department of Transportation v. Knowles, 402 So. 2d 1155 (Fla.1981). Here, the right of an injured party to seek redress has not been abolished. Rather, the legislature has merely substituted the state and its agencies, which previously could not be sued because of sovereign immunity, for the individuals who could have been sued. Knowles. Thus, appellant’s cause of action has not been destroyed but has been converted to an action against a state agency.
Appellant further points out that since her exclusive remedy is against the state, a negligent employee cannot be held personally liable for a judgment in excess of the monetary limits imposed by statute on the state’s liability. In effect, appellant’s cause of action has been limited by a cap of $50,000 per elaimant/$100,000 per occurrence. § 768.28(5), Fla.Stat. (Supp.1980).2 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. See Jetton v. Jacksonville Electric Authority, 399 So. 2d 396 (Fla. 1st DCA), petition for review denied, 411 So. 2d 383 (Fla.1981).
As noted, appellant’s claim relates to incidents which occurred in August 1980. We hold that under section 768.28(9), which became effective June 30, 1980, Dr. Van-derschliden is personally immune from suit for ordinary negligence in performance of his governmental employment, and appellant’s action may be maintained only against the governmental entity. We affirm the trial court’s holding that section 768.28(9) is constitutional.
AFFIRMED.
HOBSON, A.C.J., and DANAHY, J„ concur. . Appellant declined the opportunity to amend to allege that Dr. Vanderschildcn acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property.
. Appellant may seek reimbursement from the legislature for damages in excess of the statutory limits. § 768.28(5), Fla.Stat.
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Jaar v. The Univ. OF Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)…when applied to a physician who, within the scope of his governmental employment, negligently caused injury to another. Bryant v. Duval County Hospital Authority, 459 So. 2d 1154 (Fla. 1st DCA 1984); White v. Hillsborough County Hospital Authority, 448 So. 2d 2 (Fla. 2d DCA), cause dismissed, 443 So. 2d 981 (Fla.1983). The next issue presented for determination is whether sovereign immu [*245] nity applies to limit the University s liability for the negligent acts of Dr. Ward. An employer or principal is…
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State v. Koch, 582 So. 2d 5 (Fla. 1st DCA 1991)…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. White v. Hillsborough County Hospital Authority, 448 So. 2d 2, 3 (Fla. 2d DCA 1983); Bryant v. Duval County Hospital Authority, 459 So. 2d 1154, 1155 (Fla. 1st DCA 1984). In White v. Hillsborough County Hospital Authority, supra at 3, the court specifically stated that with regard to a state employee’s simple…
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Pagan v. Sarasota Cnty. Pub. Hosp. Bd., 884 So. 2d 257 (Fla. 2d DCA 2004)…agans. It is also well established that a physician employed by a sovereignly immune entity is entitled to the benefit of sovereign immunity. See Pub. Health Trust v. Valcin, 507 So. 2d 596, 601 (Fla.1987); White v. Hillsborough County Hosp. Auth., 448 So. 2d 2, 2 (Fla. 2d DCA 1983); Bates v. Sahasranaman, 522 So. 2d 545, 546 (Fla. 4th DCA 1988); Jaar v. Univ. of Miami, 474 So. 2d 239, 244 (Fla. 3d DCA 1985). No facts have been adduced to show that the physicians who practice with First Physicians Group ar…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kluger v. Bernadette White & Manchester Ins. & Indem. Co., 281 So. 2d 1 (Fla. 1973)
- State v. Knowles, 402 So. 2d 1155 (Fla. 1981)
- Jetton v. Jacksonville Elec. Auth., 399 So. 2d 396 (Fla. 1st DCA 1981)