EVELYN GLACE AND KENNETH GLACE, HER HUSBAND, APPELLANTS,
v.
THE LOWER FLORIDA KEYS HOSPITAL DISTRICT, D/B/A FLORIDA KEYS MEMORIAL HOSPITAL: LEON HIRZEL, M.D.; AND THE FLORIDA PATIENT'S COMPENSATION FUND, APPELLEES
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The court reversed a dismissal of a medical malpractice complaint against a tax district hospital, holding that the plaintiff's general allegation of compliance with statutory notice requirements under Section 768.28(6) was sufficient to survive a motion to dismiss, and that the trial court erred in requiring more specific notice allegations.
A general allegation that statutory notice requirements have been satisfied is sufficient under Florida Rule of Civil Procedure 1.120(c). The trial court erred in dismissing the complaint based on allegedly inadequate notice allegations, and the complaint should be reinstated.
[1] A general allegation that all conditions precedent have been performed or have occurred is sufficient when pleading the performance or occurrence of conditions precedent.
[2] Compliance with the notice requirements of Section 768.28(6), Florida Statutes, is a condition precedent to bringing a tort action against a tax district hospital.
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Join FLexlaw to unlock all legal intelligence“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.”
Establishes the pleading standard under Florida Rule of Civil Procedure 1.120(c) that permits general allegations of conditions precedent
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Join FLexlaw to unlock all legal intelligenceEvelyn and Kenneth Glace filed a medical malpractice complaint against the Lower Florida Keys Hospital District and a physician. The complaint include…
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PER CURIAM.
Assuming without deciding that the tax district hospital herein comes within the ambit of Section 768.28, Florida Statutes (1983), see North Broward Hospital District v. Eldred, 466 So. 2d 1210 (Fla. 4th DCA 1985), review granted, No. 67,022 (Fla.1985), we conclude that the trial court erred in dismissing with prejudice the medical malpractice complaint filed below against the said hospital based on the asserted failure to allege that proper notice of the claim was given pursuant to Section 768.28(6), Florida Statutes (1983). In our view, the plaintiffs’ complaint properly alleges such notice as follows:
“Notice has been given to THE LOWER FLORIDA KEYS HOSPITAL DISTRICT and The Department of Insurance of the State of Florida pursuant to Florida Statute § 768.28(6), without conceding that THE LOWER FLORIDA KEYS HOSPITAL DISTRICT is entitled to any type of sovereign immunity or that it is entitled to the damage limitations of § 768.28.”
We reach this result based on the authority of Fla.R.Civ.P. 1.120(c) which states that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” (e.s.) Plainly, it is a condition precedent to bringing the tort action herein that the notice requirements of Section 768.28(6), Florida Statutes (1983), have been complied with — and, accordingly, a general allegation to that effect is all that must be pled in the complaint. See Ashley v. Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985).
The final order under review is reversed and the cause is remanded to the trial court with directions to reinstate the initial complaint filed herein.
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Belki A. Cabral v. City OF Miami Beach, 76 So. 3d 324 (Fla. 3d DCA 2011)…. Cabral’s complaint alleged that she had satisfied all pre-suit notice requirements. Based on the allegations of Ms. Cabral’s complaint, we find that she adequately pled that she gave proper notice to the City. Glace v. Lower Fla. Keys Hosp. Dist., 481 So. 2d 509 (Fla. 3d DCA 1985). “We reach this result based on the authority of Fla. R. Civ. P. 1.120(c) which states that ‘[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent hav…
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Washington v. Sch. Bd. of Hillsborough Cnty., 731 F. Supp. 2d 1309 (M.D. Fla. 2010)…...” Fla. Stat. § 768.28(6)(a). A complaint must allege compliance with this requirement, Menendez v. N. Broward Hosp. Dist., 537 So.2d 89, 91 (Fla. 1988), but the allegation need only be general, Glace v. Lower Fla. Keys Hosp. Dist., 481 So.2d 509, 509 (Fla.1985). A complaint that fails to include such an allegation is subject to dismissal for failure to state a claim. Menendez, 537 So.2d at 91. A complaint is subject to dismissal with prejudice if the three-year period has run an…
Authorities Cited
- N. Broward Hosp. Dist. v. Eldred, 466 So. 2d 1210 (Fla. 4th DCA 1985)
- Delma Ashley v. Lawson Lamar, 468 So. 2d 433 (Fla. 5th DCA 1985)