Bonati v. State of Florida Agency for Health Care Administration

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALFRED O. BONATI, et al.,

Plaintiffs,

v. Case No. 8:24-cv-0814-KKM-AAS

STATE OF FLORIDA AGENCY FOR

HEALTH CARE ADMINISTRATION,

et al.,

Defendants.

_______________________________________

ORDER

Defendants Rachel Beane, Tanya Ferrai, Terry Moriarty, Kimberly Smoak,

and Chris Wright1 jointly move to dismiss plaintiffs Dr. Alfred Bonati and Gulf

Coast Orthopedic Center Corporation (GCOCC)’s Amended Complaint. Motion

to Dismiss (Doc. 29) (MTD). For the reasons below, I grant the defendants’ motion.

I. BACKGROUND

Plaintiff Dr. Alfred Bonati is an orthopedic surgeon who has been licensed

to practice medicine in Florida since 1981.2 Am. Compl. (Doc. 14) (FAC) ¶ 20.

Around the late 1980s, Bonati began developing surgical techniques that were less

invasive than the common spine surgery techniques at the time. Id. ¶¶ 24, 25. His

techniques “either significantly reduced or eliminated the surrounding anatomical

destruction, extensive rehabilitation and uncertain surgical outcomes.” Id. ¶ 25.

1 The plaintiffs listed the State of Florida Agency for Health Care Administration in the original

complaint but dropped it without explanation in the First Amended Complaint. See Am. Compl.

(Doc. 14).

2 At this stage, I accept the complaint’s factual allegations as true and construe them in the light

most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).

Through the use of dilating tubes, surgical instruments, and local anesthesia,

Bonati is able to keep patients awake and communicative during surgery, avoiding

the need for general anesthesia. Id. ¶¶ 26, 27. Because of these techniques, Bonati

could receive feedback from patients during surgery about their symptoms,

“allowing him to further develop decompressive surgical techniques.” Id. ¶ 29.

Family members and caretakers could also be present during surgery. Id. ¶ 30.

Bonati’s “minimally invasive surgical technique” allows patients to return to

normal activities within days. Id. ¶ 31.

Bonati operates GCOCC, a “physician clinical practice” (also known as The

Bonati Spine Institute) in Pasco County, Florida. Id. ¶ 11. He also operates a

licensed ambulatory surgery center called the Medical Development Corporation

of Pasco County (MDC). 3 Id. ¶ 12. Bonati “direct[s] and control[s]” both facilities.

Id. ¶ 34. To perform surgeries, Bonati hires and trains “surgeons and staff trained

in his specific surgical technique.” Id. ¶ 32. Patients are first evaluated at GCOCC,

and then if surgery is recommended, scheduled for surgery at MDC. Id. ¶ 33.

Bonati and GCOCC have performed nearly 80,000 surgical procedures. Id. ¶ 38.

GCOCC’s marketing consists of advertisements on Google, Facebook, and

YouTube, as well as television and radio channels. Id. ¶ 39. More than 90 percent

of GCOCC patients find GCOCC through digital marketing. Id. ¶ 40.

On March 8, 2023, almost all of the defendants arrived at GCOCC for an

unannounced multi-day inspection of MDC. Id. ¶¶ 42, 47. The defendants present

were Chris Wright, an Investigation Specialist II with the Florida Department of

Health (DOH), and Registered Nurse Specialists Tanya Ferrai, Rachel Beane, and

3 The MDC is listed as a plaintiff in both the original and amended complaints, but in the amended

complaint, MDC does not bring any causes of action. See Am. Compl.

Terry Moriarty with the Florida Agency for Healthcare Administration (AHCA).

Id. ¶¶ 14–18. These defendants stated that their inspection was prompted by “a

series of confidential complaints concerning allegations of unlicensed employees

of MDC conducting ‘entire spine surgery.’ ” Id. ¶ 43. The defendants viewed two

surgical procedures, requested and received numerous patient charts, reviewed

information related to risk management, and interviewed numerous staff. Id. ¶ 45.

Defendant Ferrai, lead investigator for AHCA, “continuously and falsely

suggested that Dr. Bonati was under some form of Federal and/or criminal

investigation,” and warned employees that they could suffer negative

consequences (such as the loss of employment) from continuing to be an employee

of GCOCC or MDC. Id. ¶ 46.

The defendants were “relentlessly determined” to achieve their objective of

suspending MDC’s license to operate, and “intentionally conflated” information

that they received. Id. ¶ 54. The defendants began contacting patients, “inquiring

and demanding” information from them about financial arrangements between

them, GCOCC, and MDC. Id. ¶¶ 50–51. The defendants represented to patients

that Bonati and his staff were the subjects of a federal investigation, along with

other “misrepresentations” about Bonati’s fitness as a doctor and past claims of

malpractice. Id. ¶ 52. Even after not finding evidence supporting their suspicions,

the defendants “intentionally fabricated a false tale” that MDC’s external risk

manager had tried to stop MDC from performing entire spine surgeries. Id. ¶ 56.

On March 15, 2023, the AHCA issued an Emergency Suspension Order

(ESO) of MDC, which suspended operations at MDC and therefore effectively shut

down GCOCC as well. Id. ¶ 57; (Doc. 14-1) (ESO). The plaintiffs assert that the

ESO’s findings are “fictional” because no “Certified Surgical Technologist” has

ever performed an entire spine surgery at MDC. Id. ¶¶ 60–61. The ESO cites MDC’s

risk-manager’s assertion that a “Certified Surgical Technologist” had performed

entire spine surgeries and corroborated that finding with statements from MDC

employees, including a registered nurse, operating room director, and compliance

officer, who had all allegedly resigned their positions because of their concerns. Id.

¶¶ 61–62.

The ESO was not the end, though. The defendants allegedly “drafted the

ESO with the express intent that it would be published and immediately attributed

to Bonati and GCOCC,” and subsequently leaked it to the media. Id. ¶¶ 71–72. To

protect current patients from further injury and for continuity of care, GCOCC

established a relationship with another ambulatory surgery center (Alternate

Facility) that credentialed several GCOCC physicians and began receiving

GCOCC patients for surgery. Id. ¶¶ 73–75. Shortly thereafter, the defendants

appeared at the Alternate Facility for an inspection—specifically, to determine

whether Bonati or the “certified surgical technologist” that primarily works with

him on his surgical team were practicing there. Id. ¶ 76–77.

Without notice to Bonati or GCOCC, Lead Investigator Ferrai demanded

that the Alternate Facility revoke Bonati’s employees’ credentials and terminate

their relationship and “spine program” with Bonati. Id. ¶¶ 78, 91. Ferrai threatened

to shut down the facility if they did not comply. Id. ¶ 79. Upon learning that the

spine program was still in place, the defendants demanded a review of the

Alternate Facility’s employment and credentialing files. Id. ¶ 84–85. Ferrai told the

Alternate Facility that Bonati was under a federal and criminal investigation and

told Bonati’s patients there that Bonati had a history of malpractice claims. Id. ¶¶

87, 88. On May 15, 2023, the Alternate Facility terminated their relationship with

Bonati and GCOCC. Id. ¶ 90.

On April 3, 2023, the AHCA filed an Administrative Complaint against

MDC. Id. ¶ 93. MDC and Bonati executed a settlement agreement on July 7, 2023,

and MDC was able to resume operations. Id. ¶ 108. Bonati and GCOCC filed this

action in April 2024 alleging substantive and procedural due process violations

against all defendants (counts I through IV) and tortious interference with a

business relationship against all defendants (counts V and VI). Id. ¶¶ 117–171.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement

of the claim showing that the pleader is entitled to relief.” This pleading standard

“does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555).

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 557).

“To survive a motion to dismiss” for failure to state a claim, a plaintiff must

plead sufficient facts to state a claim that is “plausible on its face.” Id. (quoting

Twombly, 550 U.S. at 570). A claim is plausible on its face when a “plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. When considering the motion,

courts accept the complaint’s factual allegations as true and construe them in the

light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th

Cir. 2008). Courts should limit their “consideration to the well-pleaded factual

allegations, documents central to or referenced in the complaint, and matters

judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.

2004), abrogated on other grounds by Twombly, 550 U.S. 544.

III. ANALYSIS

A. Counts I–IV are Barred by Qualified Immunity

“Qualified immunity shields public officials from liability for civil damages

when their conduct does not violate a constitutional right that was clearly

established at the time of the challenged action.” Bailey v. Wheeler, 843 F.3d 473,

480 (11th Cir. 2016). To succeed on a qualified immunity defense, the government

official must “first establish that he was acting within the scope of his discretionary

authority when the alleged wrongful act occurred.” Id. The burden then shifts to

the plaintiff, who must show “(1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 735, (2011)). “For a constitutional right to be clearly

established, its contours ‘must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’ ” Hope v. Pelzer, 536 U.S. 730,

739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiff’s

two-step burden can be considered in either order, and “an official is entitled to

qualified immunity if the plaintiff fails to establish either.” Jarrard v. Sheriff of Polk

Cnty., 115 F.4th 1306, 1323 (11th Cir. 2024) (quoting Piazza v. Jefferson Cnty., 923

F.3d 947, 951 (11th Cir. 2019)).

An official is acting within the scope of their discretionary authority if they

are “performing a legitimate job-related function (that is, pursuing a job-related

goal), (b) through means that were within [their] power to utilize.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). Courts do not merely

determine “whether it was within the defendant’s authority to commit the

allegedly illegal act”—courts must ask “whether the act complained of, if done for

a proper purpose, would be within, or reasonably related to, the outer perimeter

of [the officer's] discretionary duties.” Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282

(11th Cir. 1998) (quoting In re Allen, 106 F.3d 582, 594 (4th Cir. 1997)). In other

words, courts “look to the general nature of the defendant’s action[s]” and

“remove the constitutional taint” from the inquiry. Holloman, 370 F.3d at 1266.

As an initial matter, the plaintiffs fault the defendants for not robustly

addressing the scope of discretionary authority prong. Resp. to MTD (Doc. 35)

(Resp.) at 11. But the defendants speak to this point when they argue that “the

[d]efendants’ actions fell within the regulatory purview of ACHA and FDOH, and

were therefore sanctioned by law,” and that “[n]othing in the pleadings indicates

ACHA dismissed the [ESO] due to any lack of justification for the investigation.”

MTD at 14. More is not necessary to preserve the issue that the defendants were

acting within the scope of their discretionary power.

On the merits of the discretionary authority issue, the plaintiffs do not

meaningfully refute that the defendants’ conduct arose in their capacity as state

officials investigating potential regulatory violations, even if the plaintiffs conceive

of the defendants’ actions as egregious abuses of that power. The defendants

began investigating MDC after receiving “a series of confidential complaints

concerning allegations of unlicensed employees . . . conducting ‘entire spine

surgery.’ ” FAC ¶ 43. The defendants’ actions to determine whether improper

spine surgeries were occurring is “in general” “part of [their] job-related powers

and responsibilities.” Holloman, 370 F.3d at 1266 (emphasis omitted); see FAC ¶ 7

(“AHCA is responsible for health facility licensure, inspection, and regulatory

enforcement.”); id. ¶ 9 (“DOH is responsible for regulating health practitioners,

including physicians, nurses, and other licensed healthcare providers.”). The

plaintiffs do not suggest that most of the means used for the investigation—

watching surgical procedures, reviewing patient charts and risk management

information, and interviewing staff—were outside the defendants’ power to

employ as “investigators.” Holloman, 370 F.3d at 1265; FAC ¶¶ 42, 45.

The plaintiffs’ view that some of the defendants’ investigatory tactics

amounted to an “extraordinary, malicious campaign,” in particular those actions

involving the Alternate Facility, does not change the analysis. Resp. at 11–12.

When the “constitutional taint” is removed, the defendants’ actions are

investigatory tactics, which although were perhaps zealous, are still “within, or

reasonably related to, the outer perimeter of [their] discretionary duties.” Harbert

Int’l, 157 F.3d at 1282. At all times, the actions of the defendants were at least

“reasonably related to” enforcement and investigation. Id. The investigation into

the Alternate Facility, as the plaintiffs allege, was to “investigate whether Dr.

Bonati . . . or the certified surgical technologist that primarily works with him on

his surgical team were practicing on the premises.” FAC ¶ 77. The ESO speaks of

the “Certified Surgical Technologist” as one of the agency’s primary concerns, so

it is unsurprising that the defendants investigated the plaintiffs’ subsequent “spine

program” with the Alternative Facility. ESO ¶¶ 13–15. Therefore, the allegations

show that the defendants were acting within the scope of their discretionary

authority.

Next, the plaintiffs are unable to show either that the defendants violated a

constitutional right or that the right was clearly established at the time of the

challenged conduct. Echols, 913 F.3d at 1319. “Clearly established law” means the

decisions of the Supreme Court of the United States, the Eleventh Circuit Court of

Appeals, or the highest court of the pertinent state—in this case, the Supreme

Court of Florida—that provide clear notice of the violation to the official. McClish

v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007); Priester v. City of Riviera Beach, 208

F.3d 919, 926 (11th Cir. 2000). “A right is clearly established if (1) a case with facts

materially similar has been decided by the United States Supreme Court, the

Eleventh Circuit, or the applicable state supreme court before the challenged

conduct; (2) a broader, clearly established principle controls the facts of the

situation; or (3) the conduct so obviously violates the constitution that prior case

law is unnecessary.” Wade v. Daniels, 36 F.4th 1318, 1323 (11th Cir. 2022) (citing

Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017)).

The plaintiffs blend the merits and clearly established prongs together,

creating unnecessary confusion. But regardless, they can show neither. They allege

that two “clearly established” constitutional rights were violated: the right to

procedural due process and the right to pursue an occupation. Resp. at 2; FAC ¶¶

117–57. According to the plaintiffs, the defendants violated both constitutional

rights by “shredding” the plaintiffs’ relationship with the Alternate Facility. Resp.

at 12. As for the procedural due process right, the plaintiffs beg the question—they

state that the right is clearly established because it is “well-settled.” Id. But

“[p]laintiffs cannot carry their burden of proving the law to be clearly established

by stating constitutional rights in general terms.” Foy v. Holston, 94 F.3d 1528, 1532

(11th Cir. 1996) (citing Dartland v. Metro. Dade Cnty., 866 F.2d 1321, 1323 (11th Cir.

1989)). And the plaintiffs point to no case establishing that interference with a

business relationship constitutes the deprivation of procedural due process. Resp.

at 23-24. On the contrary, “while interfering with a business relationship may

constitute a tort, it is not a constitutional violation.” Baltimore Air Transp., Inc. v.

Jackson, 419 F. App’x. 932, 937 (11th Cir. 2011).

Similarly, neither the plaintiffs’ allegations nor citations to caselaw establish

the right to purse an occupation as clearly established or violated. The plaintiffs

note that a clearly established right can be established by prior precedent or in

“rare cases of obvious clarity,” Plowright v. Miami Dade Cnty., 102 F.4th 1358, 1366

(11th Cir. 2024) (quoting Brooks v. Warden, 800 F.3d 1295, 1306)), but go on to show

neither of those. Though the Supreme Court has recognized a “right to choose

one’s field of private employment,” it is “subject to reasonable governmental

regulation.” Conn v. Gabbert, 526 U.S. 286, 291–92 (1999). But the cases in which the

Supreme Court recognized this generalized right involve a “complete prohibition

of the right to engage in a calling.” Id. Therefore, foreclosing one business

opportunity while still allowing Bonati to maintain his license is not enough to

deprive Bonati of his right to engage in a chosen occupation. See Doe v. Fla. Bar, 630

F.3d 1336, 1344–45 (11th Cir. 2011) (finding no constitutional violation where the

plaintiff’s legal specialist certification was denied because “the full range of legal

work” was still available to her). The plaintiffs’ own allegations belie the point—

they state that the “ability to practice was significantly altered.” Resp. at 27. This

is not enough.

Therefore, the plaintiffs’ substantive due process and procedural due

process claims are barred by qualified immunity.

B. Counts V and VI are Barred by Sovereign Immunity

Under Florida law, “sovereign immunity is both an immunity from liability

and an immunity from suit.” Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185

(Fla. 2020). “Under Florida law, sovereign immunity is the rule, rather than the

exception.” Town of Gulf Stream v. Palm Beach Cnty., 206 So. 3d 721, 725 (Fla. 4th

DCA 2016). “Any waiver of sovereign immunity ‘must be clear and unequivocal.’ ”

Id. (quoting Manatee Cnty. v. Town of Longboat Key, 365 So. 2d 143, 147 (Fla. 1978)).

Based on its authority under the Florida constitution, the Florida Legislature

enacted § 768.28, which waives sovereign immunity with respect to tort claims “to

the extent specified in this act.” Fla. Stat. § 768.28(1); Barnett v. Dep’t of Fin. Servs.,

303 So. 3d 508, 512 (Fla. 2020). Immunity is only waived for tort claims arising from

“injury or loss of property, personal injury, or death caused by the negligent or

wrongful act.” § 768.28(1).

The plaintiffs’ claims of tortious interference with a business relationship

are barred by sovereign immunity under Florida law. As a threshold matter, both

parties assume that § 768.28’s waiver applies to the instant claim, but it does not.

The tortious interference claims do not allege any “personal injury, wrongful

death, or injury or loss of property” as required by § 768.28, but instead seeks

economic damages in the form of compensatory damages, lost profits, reputational

harm, and special damages. FAC {J 164, 171. “The waiver of sovereign immunity

has not been extended to include... economic damages framed in [a] count[] for

... tortious interference with [an] advantageous business relationship.” City of

Pembroke Pines v. Corr. Corp. of Am., Inc., 274 So. 3d 1105, 1113 (Fla. 4th DCA 2019);

see also County of Brevard v. Miorelli Eng’g, Inc., 677 So. 2d 32, 34 (Fla. 5th DCA 1996)

(barring claim causing only economic damages because Florida did not waive

sovereign immunity for such claims), quashed on other grounds, 703 So. 2d 1049 (Fla.

1997); City of Fort Lauderdale v. Tropical Paradise Resorts, LLC, 372 So. 3d 663, 667-68

(Fla. 4th DCA 2023) (same). Therefore, the plaintiffs’ tortious interference claims

are barred by sovereign immunity.

IV. CONCLUSION

Because the plaintiffs’ claims are barred by sovereign and qualified

immunity, the Amended Complaint fails to state a claim that is plausible on its

face and is dismissed without prejudice. See Dupree v. Owens, 92 F.4th 999, 1008

(11th Cir. 2024) (“Because the dismissals were based on sovereign immunity

erounds, the jurisdictional nature of the dismissal requires it to be entered without

prejudice.”).

Accordingly, the following is ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 39) is GRANTED.

2. Counts I-VI are DISMISSED WITHOUT PREJUDICE.

3. The clerk is directed to CLOSE this case.

ORDERED in Tampa, Florida, on December 4, 2024.

athryn’ Kimball Mizelle

United States District Judge