Fagan v. Jackson County Hospital District
2024 WL 615064, 1st DCA, 2/14/24
Judge Kelsey
Topics: Medical Malpractice Presuit Requirements; Sovereign Immunity—Florida; Wrongful Death
Full Take: Since this is a case where the claim was dismissed, we can assume—as one must in a motion to dismiss—that Jackson County Hospital District committed medical malpractice that resulted in the death of LaShan Fagan. But her family is not going to get their day in court.
Section 768.28(2), Fla. Stat. (2017), requires that, as a prerequisite to suing any state agencies or subdivisions including the independent establishments of the state (including state or county hospitals, like in this case), plaintiffs must notify the Florida Department of Financial Services of the claim within two years of when the claim accrued. In a non-death claim, a plaintiff has three years to send the notice. In a wrongful death claim like this one, the limit is two years. The statute of limitations for filing a claim for wrongful death claim is also two years.
The Plaintiff (the personal representative for LaShan Fagan’s estate) admitted he did not send notice to DFS within two years of the death. He argued that invoking the tolling of the statute of limitations that is available as part of the presuit investigation process under Chapter 766 for any medical malpractice claim should also toll the two-year time limit for sending written notice to DFS. The trial court did not agree, and it dismissed the claim. The Plaintiff appealed
On appeal, the DCA affirmed. Judge Kelsey wrote that it was “facially obvious” that the tolling provisions under Chapter 766 toll “deadlines for filing lawsuits, not for giving statutory notice to state agencies.” And unlike Chapter 766.106, section 768.28 “uniquely embodies and restricts the state’s limited waiver of sovereign immunity in tort actions.” Unlike chapter 766, section 768.28 does not allow for delayed notice to DFS.
Judge Kelsey rejects the argument that it’s essentially unfair not to extend the DFS-notice deadline along with other deadlines in the case as an argument standing on “extremely unstable ground.” The statute says what it says, and the court can’t decide a case based on what the Legislature “should” do, only what it expressly did. The DCA was guided by several prior cases holding that the failure to timely notify DFS was fatal to a case. AFFIRMED.
https://supremecourt.flcourts.gov/content/download/1831007/opinion/Opinion_2023-0724.pdf
