Alice R. Mcswain v. Evan Earl Dussia

In this medical malpractice action by Alice McSwain against the Duval County Hospital Authority, doing business as University Hospital of Jacksonville, and others, the trial court granted summary judgment for the Authority on the ground that McSwain had failed to give timely notice of her claim to the Department of Insurance, as required by section 768.28(6), Florida Statutes (1985). The first point raised is whether this notice requirement is waivable so as to preclude summary judgment. McSwain's second point contends that since defendant Duval County Hospital Authority is an agency of a municipality (the City of Jacksonville), there is no requirement under the cited statute for giving notice to the Department of Insurance. We first review the facts relevant to these issues. Plaintiff filed a complaint against the Duval County Hospital Authority, several doctors, and other entities, which alleged that medical malpractice occurred during her operation on June 26, 1980. On August 9, 1982, a joint motion to dismiss was filed on behalf of the hospital authority and Dr. Dussia, alleging as the only ground that the action was barred by section 768.28(9)(a), Florida Statutes, in that plaintiff failed to allege sufficient ultimate facts to show that Doctor Dussia acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights, safety, or property. Over two years later, on September 17, 1984, defendant hospital authority filed another motion to dismiss, alleging for the first time that the complaint was insufficient because plaintiff had not alleged the requisite notice pursuant to section 768.28(6) in that the complaint alleged that notice was given to the city of Jacksonville but that there was no allegation of notice to the Department of Insurance. Section 768.28(6) requires that, with respect to any claim against a state agency, except a claim against a municipality,1{/Cite} notice must be given to the Department of Insurance within three years after the claim accrues. The trial court denied the motion because it was not clear whether the hospital was the agency of the municipality, the state, or the county.