Public Health Trust of Dade County v. Acanda

Supreme Court of Florida · Torts

TortsSovereign immunityService of processPleadingsection 768.28(7)Department of Financial Servicesservice of processcondition precedent

Facts

Acanda gave birth at Jackson Memorial Hospital, where her premature infant son was placed in the neonatal intensive care unit, contracted a severe bacterial infection, and died five days later. Acanda, as representative of the child's estate, sued Public Health Trust for negligence by hospital residents, fellows, and nurses. Public Health Trust's answer included an affirmative defense asserting failure to state a cause of action because Acanda had not served process on the Department of Financial Services under section 768.28(7), but it did not seek pretrial relief on that basis. At trial, Public Health Trust moved for a directed verdict after Acanda's final witness, and Acanda served DFS the next morning before court resumed.

Issue

Whether, under section 768.28(7), Acanda's failure to serve process on the Department of Financial Services until after Public Health Trust moved for a directed verdict was fatal to her negligence action. More specifically, the question was whether such service is a condition precedent or an element of the plaintiff's case that had to be proven before completion of the case-in-chief.

Rule

Section 768.28(7) requires service of process on the head of the agency concerned and on the Department of Financial Services, but it does not make service on DFS a condition precedent to maintaining the action and does not make proof of such service an element of a negligence cause of action. A defendant asserting noncompliance with section 768.28(7) must plead that noncompliance with specificity and particularity and properly raise it in a pretrial motion; where DFS is not a party and the defendant shows no prejudice from the timing of service, delayed service is not fatal to the claim.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Orlando, Nina Alvarez sued Suncoast Behavioral Center, a county-operated hospital, for negligence after an injury during inpatient treatment. She timely satisfied the statute's written notice-and-denial requirements, filed suit, and served the hospital's director, but she did not serve the Department of Financial Services until six months later.

The hospital argues the action must be dismissed because service on the Department of Financial Services was a condition precedent to maintaining the negligence action. How should the court rule?

Explanation. The majority held that section 768.28(7) requires service on the agency head and the Department of Financial Services, but unlike subsection (6), it does not expressly make that service a condition precedent. The court treated that omission as significant. Thus, failure to serve DFS before filing does not itself bar the negligence action. (Derived from Public Health Trust of Dade County v. Acanda (n.d.).)