The King Can Do Wrong: How Does Sovereign Immunity Affect My Medical Malpractice Case?
Traditionally, you cannot sue the government. It is a legal doctrine inherited by the United States from English common law, whereby the king created the courts and therefore could not be bound by them. In the absence of a king, every governmental entity has picked up that mantle of immunity from suit.
What many people do not realize, however, is that certain hospitals are considered government entities, and therefore receive the benefit of this immunity. Teaching hospitals, for example, such as Shands benefit from sovereign immunity. County-owned hospitals that are public institutions, such as Jackson Hospital, benefit from sovereign immunity. Sometimes hospitals have been specifically organized and designated as “special taxing districts” so that they may benefit from sovereign immunity—until a few years ago Bay Medical Center was one such hospital.
What’s worse is that doctors, nurses, and other healthcare providers who are employees of these sovereignly immune hospitals are also immune by statute. Ordinarily, in a medical malpractice case, there may be multiple avenues of recovery because the hospital, doctor, professional group, etc. all may have separate insurance policies to cover malpractice claims. If the doctor is relying on their employment by a sovereign entity, however, they are not required to carry their own malpractice insurance.
Nowadays, in most states including Florida, sovereign immunity has been waived, and the government can be sued. But only under certain severe restrictions. The Florida Statute that waives sovereign immunity, Section 768.28, caps the damages that can be recovered against a government entity at $200,000 for an incident that affects one person and $300,000 for an incident that affects more than one person. No matter how many additional people were harmed, how severe the injuries, or how many wrongdoers there were, the government will only pay up to the cap per incident. The statute also restricts the amount of attorneys fees that can be earned on a sovereign case, making it even more difficult for attorneys to take on these already risky cases on behalf of their injured clients.
These restrictions are especially prohibitive in medical malpractice cases, where the costs are already so much higher and the risk so much greater than in a run-of-the-mill auto accident or slip and fall case. It is truly a rarity to find a sovereignly immune medical malpractice claim that is economically feasible not only for our firm but for our clients.
If the defendant is sovereignly immune, even if your case went to court and the jury awarded you more than the sovereign limits, you are not guaranteed to see that money. The only way to receive a judgment in excess of sovereign limits is through a “Claims Bill,” which means the Florida Legislature literally has to vote and pass a law approving your judgment. This is exceedingly time-consuming, inefficient, expensive, and difficult to do. It results in an even greater delay in your recovery and possibly no recovery for you at all. Since the year 2000, less than one-fifth of dollars requested in claims bills have actually been awarded to the injured parties.
Even if your claims bill passes, you will not necessarily receive what the jury awarded you—take a recent example where a claims bill reduced the jury award to the family of an injured child by over 15 million dollars and then the Supreme Court of Florida forced their attorneys to take a reduced fee that would not even begin to cover their litigation costs. That firm was forced to take a huge financial loss on the case, despite recovering a substantial amount for their clients and fighting through the litigation and claims bill process on their behalf for over five years. The family even requested that I higher fee be awarded, but it was not allowed. It is not a small risk that either you or your attorney is taking by attempting a claims bill.
The already complex area of medical malpractice litigation only becomes that much more uncertain when sovereign entities are involved. If you have been injured as a result of medical negligence, call the experienced medical malpractice attorneys at Fasig, & Brooks today. We will evaluate your claim, investigate whether any of the at-fault parties are sovereign, and determine whether it is possible to recover on your behalf.
ABOUT THE AUTHOR:
As an attorney, E. Rose Kasweck focuses a majority of her legal practice on medical malpractice claims. As such, she has a comprehensive grasp of the various special protections enjoyed by doctors and hospitals and is committed to protecting the rights and interests of her clients.