        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

  ALLAN J. DINNERSTEIN M.D., P.A., and ALLAN J. DINNERSTEIN,
                            M.D.,
                         Appellants,

                                      v.

                 FLORIDA DEPARTMENT OF HEALTH,
                            Appellee.

                              No. 4D17-2289

                          [ September 26, 2018 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cymonie Rowe, Judge; L.T. Case No. 502009CA007760.

  Robert M. Presley of Presley and Presley, P.A., Wellington, for
appellants.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Shane Weaver,
Senior Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   Allan J. Dinnerstein, M.D. and his professional association, Allan J.
Dinnerstein, M.D., P.A., appeal the trial court’s judgment in favor of the
Florida Department of Health (“FDOH”), which resulted in the denial of
appellants’ sovereign immunity claim in a medical malpractice action.
Appellants based their claim of immunity on their alleged participation in
Florida’s Volunteer Healthcare Provider Program. For the reasons stated
below, we affirm.

   Earlier, appellants had obtained summary judgment declaring that
they were entitled to sovereign immunity in the medical malpractice
action. However, FDOH appealed, and we reversed summary judgment
after concluding that triable issues existed regarding whether Dr.
Dinnerstein was acting in his capacity as a volunteer physician when he
treated the patient. Fla. Dep’t of Health v. Allan J. Dinnerstein, M.D., P.A.,
78 So. 3d 26 (Fla. 4th DCA 2011).
   Our decision in Dinnerstein succinctly summarizes the underlying facts
that led to the appeal:

          In 2005, Dr. [Allan] Dinnerstein, M.D., through his
      corresponding professional association, entered into a
      contract with the defendant, the Florida Department of
      Health, whereby he agreed to participate in Florida’s
      Volunteer Healthcare Provider Program. The Legislature
      enacted this program in section 766.1115, Florida Statutes,
      to improve the access of indigent residents to health care by
      offering health care providers immunity from suit for their
      agreement to offer free health care to indigent residents. See §
      766.1115(2), Fla. Stat. (2005). A volunteer provider may not
      be named as a defendant in any malpractice action where the
      care is performed under the health care provider’s contract
      with the Department. § 766.1115(4), Fla. Stat. (2005).

         The statute mandates that “[p]atient selection and initial
      referral must be made solely by the governmental contractor,
      and the provider must accept all referred patients.” §
      766.1115(4)(d), Fla. Stat. (2005). “If emergency care is
      required, the patient need not be referred before receiving
      treatment, but must be referred within 48 hours after
      treatment is commenced or within 48 hours after the patient
      has the mental capacity to consent to treatment, whichever
      occurs later.” § 766.1115(4)(e), Fla. Stat. (2005). The
      Department’s standard contract, signed by Dr. Dinnerstein,
      contains language based on the statutory language of section
      766.1115(4)(e). It requires that a designated agent of the
      Department must make the referral pursuant to Patient
      Referral Form, DH 1032, and the health care provider must
      obtain the approval of the Department prior to delivery of
      services. Consistent with the statute, the contract included
      the statutory language regarding emergency treatment.

          The Patient Referral Form, DH 1032, informs the patient
      that the services of the volunteer health care professional are
      being provided at no charge and that the state is solely liable
      for any injuries and damages with its liability being limited by
      sovereign immunity. The patient must sign the form agreeing
      to the referral.

        Diane Carlson, a nurse employed with the Palm Beach
      County Health Department, was in charge of the Volunteer

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Health Care Provider Program. Ms. Carlson testified that
when Dr. Dinnerstein signed the contract, he was in private
practice. However, Dr. Dinnerstein called Ms. Carlson,
informing her that he was going to start working at Bethesda
Memorial Hospital and that he was going to draw down on his
private practice. Dr. Dinnerstein said that he no longer
wanted to accept patients from the network. Nonetheless, Dr.
Dinnerstein never withdrew from the network and his
volunteer contract was still in effect in March 2007.

   In 2007, Ludana Prophete was a patient receiving prenatal
care at the Lantana clinic of the Palm Beach County Health
Department, a designated agency for the Department. On
March 5, 2007, Ms. Prophete arrived by ambulance at
Bethesda Memorial Hospital in Palm Beach County,
complaining of abdominal pain. This appears to be a self-
referral and not one made by the clinic. Dr. Dinnerstein has
not claimed that he is covered by immunity for his treatment
of Ms. Prophete on this date. A nurse made a diagnosis that
Ms. Prophete had potential preeclampsia. Dr. Dinnerstein
was the physician on call at Bethesda, and he initially saw Ms.
Prophete and rendered some treatment. Upon discharge, Ms.
Prophete was instructed to return if she experienced other
problems. She was also told to keep her next appointment
with the Lantana clinic.

    On March 8, 2007, Ms. Prophete went to the Lantana clinic
for her appointment, where she was seen by a nurse, Sandra
Smith. Based upon her examination and Ms. Prophete’s
complaints, Smith believed that Ms. Prophete was suffering
from preeclampsia, which required immediate delivery. Smith
called the Labor and Delivery Unit at Bethesda and notified
the clerk of Ms. [Prophete’s] situation. Smith then arranged
for an ambulance to take Ms. Prophete to Bethesda, because
that is where the clinic routinely sends its patients requiring
hospitalization. On a prescription pad which Smith gave to
the paramedics, Smith noted Ms. Prophete’s vital signs as well
as her symptoms. Smith did not know which physician was
on duty, nor did she speak to any doctor regarding Ms.
Prophete. She has no responsibility for referring patients to
doctors pursuant to the volunteer health program.

   Dr. Dinnerstein saw Ms. Prophete at Bethesda on March
8th, where her blood pressure was elevated. He gave her two

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      prescriptions and told her to return the next day to get her
      blood pressure checked. She returned on March 9th, and Dr.
      Dinnerstein again examined her and released her, this time
      instructing her to return in two days to have her blood
      pressure checked. Unfortunately, Ms. Prophete died two
      hours after leaving the hospital. Dr. Dinnerstein never billed
      for his services, although Bethesda did generate a bill, which
      was later written off as uncollectable.

Dinnerstein, 78 So. 3d at 26–28.

    After winning the first appeal, FDOH brought a crossclaim against
appellants in the underlying medical malpractice action, seeking a
declaration that appellants were not under FDOH contract to provide
services to Ms. Prophete and, thus, should not be afforded sovereign
immunity protection in the medical malpractice action brought against
them by the estate of Ms. Prophete. Appellants filed a counterclaim
alleging breach of contract and seeking relief against FDOH for declining
to afford appellants sovereign immunity protection.

    Appellants moved for summary judgment, arguing that Dr.
Dinnerstein’s compensation arrangement with the hospital where the
patient was treated did not impair his right to receive sovereign immunity
and that FDOH had anticipatorily breached the parties’ agreement under
the volunteer provider contract. FDOH also moved for summary judgment,
asserting that it had no legal obligation under the parties’ volunteer
provider contract to extend sovereign immunity to Dr. Dinnerstein for two
reasons: (1) the services he provided to Ms. Prophete were not “volunteer,
uncompensated services” under Florida law because he was compensated
for her treatment through his contract with the hospital, and (2) he failed
to obtain a completed referral for the treatment from Ms. Prophete,
although she was competent to sign and understand it.

   The version of Chapter 766 in effect at the time appellant entered into
his contract with FDOH states, in relevant part:

      “Contract” means an agreement executed in compliance with
      this section between a health care provider and a
      governmental contractor. This contract shall allow the health
      care provider to deliver health care services to low-income
      recipients as an agent of the governmental contractor. The
      contract must be for volunteer, uncompensated services. For
      services to qualify as volunteer, uncompensated services under
      this section, the health care provider must receive no

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      compensation from the governmental contractor for any
      services provided under the contract and must not bill or accept
      compensation from the recipient, or any public or private third-
      party payor, for the specific services provided to the low-income
      recipients covered by the contract.

§ 766.1115(3)(a), Fla. Stat. (2005) (emphasis added). The statute further
adds:

      (4) CONTRACT REQUIREMENTS.--A health care provider that
      executes a contract with a governmental contractor to deliver
      health care services on or after April 17, 1992, as an agent of
      the governmental contractor is an agent for purposes of s.
      768.28(9), while acting within the scope of duties under the
      contract, if the contract complies with the requirements of this
      section and regardless of whether the individual treated is
      later found to be ineligible. A health care provider under
      contract with the state may not be named as a defendant in
      any action arising out of medical care or treatment provided
      on or after April 17, 1992, under contracts entered into under
      this section. The contract must provide that:

                                   [. . . .]

      (d) Patient selection and initial referral must be made solely
      by the governmental contractor, and the provider must accept
      all referred patients. However, the number of patients that
      must be accepted may be limited by the contract, and patients
      may not be transferred to the provider based on a violation of
      the antidumping provisions of the Omnibus Budget
      Reconciliation Act of 1989, the Omnibus Budget
      Reconciliation Act of 1990, or chapter 395.

      (e) If emergency care is required, the patient need not be
      referred before receiving treatment, but must be referred within
      48 hours after treatment is commenced or within 48 hours after
      the patient has the mental capacity to consent to treatment,
      whichever occurs later.

§ 766.1115(4)(d)–(e), Fla. Stat. (2005) (emphasis added).

   After a hearing on the motions for summary judgment, the trial court
entered an order denying appellants’ motion and granting FDOH’s motion.
The court found that it was undisputed that: (1) the patient was not

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referred by FDOH pursuant to section 766.1115(4)(e); (2) Dr. Dinnerstein
was paid by Bethesda for the specific and same type of services that were
afforded to the patient; and (3) Bethesda was not a contracted volunteer
with FDOH.

   The trial court concluded that when Dr. Dinnerstein treated the patient
at Bethesda, he was contracted to do so and was compensated pursuant
to his contract with Bethesda; thus, the subject care was not provided on
a volunteer basis. Consequently, the court found that FDOH did not
breach its volunteer provider contract with appellants and declined to
reach the issue of whether an anticipatory breach occurred.

   On appeal, appellants contend that summary judgment for FDOH was
in error because: (1) the trial court improperly weighed the evidence and
viewed the facts in the light most favorable to FDOH; (2) FDOH
anticipatorily breached the contract with appellants; and (3) the evidence
obtained after the prior appeal resolved the outstanding factual questions
in appellants’ favor. We disagree.

    We review the trial court’s order granting summary judgment de novo.
Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th DCA
2010). Summary judgment is appropriate only where “there is no genuine
issue of material fact and if the moving party is entitled to a judgment as
a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.
2d 126, 130 (Fla. 2000). “[T]he burden is upon the party moving for
summary judgment to show conclusively the complete absence of any
genuine issue of material fact,” and “the trial court must draw every
possible inference in favor of the party against whom summary judgment
is sought.” Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996)
(citing Moore v. Morris, 475 So. 2d 666 (Fla. 1985)).

    The trial court found that appellants were not “voluntary and
uncompensated” providers because they were compensated for Ms.
Prophete’s treatment through their Bethesda contract and because
Bethesda billed for that treatment. To resolve the sovereign immunity
issue in this case, however, we need not decide whether the trial court
correctly determined that Dr. Dinnerstein’s employment and
compensation under his contract with Bethesda precluded his eligibility
for immunity under the Volunteer Health Care Program. Here, summary
judgment for FDOH and against appellant was appropriate because there
was no evidence showing that Ms. Prophete was ever even a patient in the
volunteer program. See Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th
DCA 2009) (“Under the tipsy coachman rule, ‘if a trial court reaches the
right result, but for the wrong reasons, it will be upheld if there is any

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basis which would support judgment in the record.’ ”) (quoting Dade Cty.
Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)).

   As we pointed out in our Dinnerstein opinion, which reversed the initial
summary judgment for appellants, a threshold factual issue remained as
to whether Dr. Dinnerstein was acting within his capacity as a volunteer
physician when he treated Ms. Prophete. 78 So. 3d at 29. This issue
turned on whether Ms. Prophete’s referral was made to Dr. Dinnerstein
through the volunteer program, by way of emergency or the normal referral
process. Id. It was undisputed that no referral was made using the normal
referral process or within forty-eight hours from the commencement of
emergency treatment. Id. Therefore, for the emergency provision to apply,
a referral had to have been obtained within forty-eight hours after Ms.
Prophete had the mental capacity to consent to treatment. Id. at 29-30.
We explained as follows:

      Here, it is clear that no referral was executed within forty-eight
      hours after treatment was commenced on March 8th. Thus,
      the emergency provision could apply only if a referral was
      obtained “within 48 hours after the patient has the mental
      capacity to consent to treatment.” If Ms. Prophete had the
      mental capacity to consent to the terms of treatment in the
      volunteer network, either on March 8th or March 9th, then
      the referral requirement was not “dispensed with.” Here, as
      the Department argues, Ms. Prophete was discharged from
      Bethesda Memorial Hospital on both March 8th and March
      9th, suggesting that she would have had the mental capacity
      to consent to treatment. The fact that Dr. Dinnerstein
      discharged her two days in a row cuts against his argument
      below that there was no opportunity for Ms. Prophete to sign
      the referral form and thus consent to her treatment by him as
      a volunteer physician.

Dinnerstein, 78 So. 3d at 29–30.

   Appellants never established that Ms. Prophete lacked the requisite
mental capacity to consent to treatment. We stated the following in
Dinnerstein:

         Under the contract, if the patient had the mental capacity
      to consent to treatment, the fact that the patient died within
      the forty-eight hour period from the commencement of
      treatment would not excuse the lack of a referral. If Ms.
      Prophete did have the mental capacity to consent, then the

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      requirement of executing the referral form is crucial, because
      it informs the patient that sovereign immunity would be
      extended to the health care provider and she would be waiving
      her right to a full recovery in tort for any medical negligence.
      It is also mandated by statute.

Dinnerstein, 78 So. 3d at 29.

   Although Ms. Prophete was a patient of FDOH’s Lantana clinic, she was
never shown to be associated with the volunteer program, let alone a
patient referred through the volunteer program. Ms. Prophete was not
informed of and did not consent to participate in the volunteer program.
The nurse who prepared her transportation to Bethesda did not have any
role with the volunteer program and did not refer Ms. Prophete to a specific
doctor at Bethesda as a part of the program. Ms. Prophete happened to
be a patient at the Lantana clinic, and the nurse merely used her
customary practice of sending clinic patients—with their vitals—to
Bethesda for delivery. Because the evidence failed to show that Ms.
Prophete was a patient in the volunteer program, Dr. Dinnerstein’s
treatment of her was not shown to have been as a part of the volunteer
program.

   In sum, the undisputed facts establish that Dr. Dinnerstein never
obtained a referral for Ms. Prophete or her consent to treatment under the
volunteer program, and, as such, FDOH did not have a duty to afford him
sovereign immunity under the Act. FDOH, therefore, did not breach the
parties’ contract when it declined to do so. Accordingly, we affirm the final
summary judgment orders entered in this case.

   Affirmed.

WARNER and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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