Sovereign Immunity

The Origins of Sovereign Immunity

“The king can do no wrong” is a maxim that can be traced back to English common law, which became the root of what is known as sovereign immunity today. The doctrine of sovereign immunity means that a governmental entity is free from lawsuits. The reasoning behind this is that because the entity is sovereign, it may not be subjected to the jurisdiction of another sovereign. This means that, unless the governmental entity agrees, it cannot be sued. In the United States, sovereign immunity extends to the federal government as well as to the individual states. These entities have the ability to waive sovereign immunity in whole, or in part. In order for a government to waive sovereign immunity, they must enact statutes expressly waiving that privilege, and the courts will strictly construe the language within those statutes. In Florida, one of these statutes has been enacted.

Limited Waiver of Sovereign Immunity in Florida

While the State of Florida has the ability to enjoy the full protections of sovereign immunity, Section 13 of Article X of the Florida Constitution permits claims and lawsuits to be brought against the state. While this sounds great for potential plaintiffs, it does not release the floodgates and allow unfettered access to the state’s coffers. In order to determine the parameters around recovering against the state it is necessary to look to Section 768.28 of the Florida Statutes, which sets the rules for claims against the state. The exact rules and, more importantly, caps on recovery amounts are discussed in greater detail below.

Who Is Protected by Sovereign Immunity?

Not only is the State of Florida protected by sovereign immunity, this protection also flows to its actors. Section 768.28 permits the state to waive sovereign immunity, to a limited extent, when personal injury or death is caused by the “negligent act or omission” of any employee of the state, state agency, or state subdivision, while the employee or agent was “acting within the scope of the employee’s office or employment.” This means that the state, as well as “state agencies and subdivisions” have waived, to a limited extent, sovereign immunity and lawsuits may be brought against them. The “state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including: state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities. § 768.28(2), Fla. Stat.

There are many state agencies or subdivisions that are obviously state-esque, i.e., police departments, fire departments, Florida Department of Transportation, etc. What many potential plaintiffs do not know is that there are health care providers that are also protected by the limited waiver of sovereign immunity. The main actors that fit into this category are hospitals that are affiliated with public universities. These institutions are often referred to as “teaching hospitals” and include, but are not limited to, University of South Florida (affiliated with Tampa General Hospital), University of Florida (affiliated with UF Health – Shands Hospital) and University of Miami (affiliated with University of Miami Hospital and Jackson Memorial Hospital). If you have received care at one of these facilities, or other facilities associated with public universities, you may be limited in the amount of recovery you could obtain for a potential lawsuit.

Is My Health Care Provider off the Hook?

Your health care provider may or may not be covered under the limited waiver of sovereign immunity. If the health care provider has no affiliation with one of Florida’s public universities then they likely do not enjoy the limited sovereign immunity protection. Even if your health care provider is affiliated with a public university, in order for this doctrine to apply, the health care provider must have been acting within the scope of the health care provider’s employment with the university. Additionally, the health care provider must not have acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. For health care providers, and for those potential plaintiffs that are happy with their health care provider but nonetheless impacted by negligence, this can be a good thing. While most of the time the health care providers are protected from being personally liable, they can face personal liability if they act in one of the ways described above. This means that potential plaintiffs may not be limited by the caps discussed in the section below and may have the ability to pursue a claim directly against the health care provider, should their care rise to a level beyond that of normal negligence.

Limits on Recovery by Plaintiffs

Although the State of Florida, along with its agencies and subdivisions have opened the door to permitting lawsuits against them, there are limits on the amount of recovery available. “Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000.” § 768.28(5), Fla. Stat. If there is a judgment in excess of these limits, the state will pay out up to the $200,000 or $300,000 cap and you must then submit what is called a “claims bill.” A claims bill is a vehicle by which the judgment gets brought in front of the State Legislature and the lawmakers in Tallahassee have the ability to say whether or not the State will pay in excess of those limits. Claims bills are not readily approved, nor do they happen expeditiously.

How Do I Sue the State or its Agencies?

Before any lawsuit may be brought against the State or one of its agencies or subdivisions, it is necessary to present the claim in writing to the appropriate agency, as well as submit a claim in writing to the Department of Financial Services. For most types of lawsuits, you have three years from the date the “claim accrues” within which to put these entities on notice. For wrongful death actions, you have two years. Calculating when the claim accrues is not always black and white, so it is recommended to take action sooner rather than later to ensure the timely filing of your action. The Department of Financial Services will then have six months to decide what to do on your case before you may initiate the lawsuit. There is the possibility to receive a letter from them sooner than six months, and if they deny the claim, then you may move forward with the lawsuit at that time.

Within the written notice of the claim there are many specifics that must be included, such as the claimant’s date and place of birth and social security number as well as a summary of the claim and injuries. Cases dealing with sovereign immunity have many nuances that other cases do not. Because of that, it is highly recommended that you contact an attorney who has experience successfully litigating these claims.

What Kind of Claims Can I Bring?

Even though the State and its subdivisions and agencies are limited in the amount of exposure they have for any given claim, there is no express restriction on the types of claims that may be brought against them. Whether it be medical malpractice, nursing home negligence, general negligence, or any other type of claim that would be permissible in the State Courts of Florida, the claim may also be brought against the State.

At Paul Knopf Bigger, we passionately represent individuals across the country who have been seriously injured by medical malpractice, defective products, drugs, and medical devices, or the negligence of others.