## Facts

- Odette Acanda’s son, Ryan, was born at Jackson Memorial Hospital in February 2005, almost two months premature, and was treated in the neonatal intensive care unit.
- Ryan contracted a severe bacterial infection and died five days after birth.
- In 2006, Acanda, as representative of Ryan’s estate, sued The Public Health Trust of Miami-Dade County (operator of the hospital) for negligence and wrongful death, alleging negligence by hospital residents, fellows, and nurses.
- The Public Health Trust is treated as a state agency or subdivision for purposes of Florida’s sovereign-immunity waiver scheme.
- Section 768.28(7), Florida Statutes (2005), requires a claimant to provide written notice of a claim to both the appropriate agency and the Department of Financial Services (DFS) within the statutory time limits.

## Issues

1. Whether service of notice on DFS under section 768.28(7), Florida Statutes (2005), is a condition precedent and an element of the plaintiff’s burden of proof in a negligence/wrongful-death action against a state agency.
2. Whether a plaintiff’s failure to serve DFS before trial requires a directed verdict or dismissal when service is completed while the case remains pending and the defendant shows no prejudice.

## Decision

- The Florida Supreme Court affirmed the judgment for Acanda.
- The Court held that Acanda’s service of notice on DFS after trial began, but before the trial court ruled on the directed-verdict motion and before judgment, was not fatal to the action.
- The Court rejected the argument that DFS service is a condition precedent the plaintiff must prove as part of the prima facie negligence case.
- The Court approved the district court’s result but disapproved its reasoning and analysis.

## Legal Principles

- The notice requirement in section 768.28(7), Florida Statutes (2005), is a statutory prerequisite directed to governmental notice and administrative purposes; it does not add an element to the plaintiff’s substantive tort claim.
- Service of notice on DFS is not a jurisdictional prerequisite or a condition precedent that must be proved at trial to avoid a directed verdict on the merits.
- Noncompliance with the DFS-notice requirement functions as a matter raised by the governmental defendant and may be waived or cured while the action is pending, particularly where the defendant fails to show prejudice from delayed notice.
- A directed verdict is improper when based on an asserted “failure of proof” concerning a matter that is not an element of the cause of action.

## Conclusion

The Florida Supreme Court held that the statutory requirement to provide notice to DFS under section 768.28(7) is not part of the plaintiff’s burden of proof on negligence and that delayed service, completed while the case was pending and without demonstrated prejudice to the governmental defendant, did not require a directed verdict or defeat the judgment for the plaintiff.


Pub. Health Tr. of Miami-Dade Cnty. v. Acanda, 71 So. 3d 782 (Fla. 2011)