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).
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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 
3

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 selfreferral 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 
4

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 
5

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 thirdparty 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 
6

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 
7

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 
8

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.