RICHARD E. DEROSA & KERRY C. DEROSA, HIS WIFE, APPELLANTS,
v.
SHANDS TEACHING HOSPITAL AND CLINIC, INC., JAMES A. HILL, M.D., GARY LANE, M.D., AND FLORIDA BOARD OF REGENTS, APPELLEES

Fla. 1st DCA | 1985-04-25
No. BC-165
THOMPSON and WIGGINTON, JJ., concur.
468 So. 2d 415 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 8 cases

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Synopsis

Appellants sought to continue discovery in a medical malpractice action against physicians and hospital defendants who claimed sovereign immunity. The trial court granted summary judgment before appellants could depose Dr. Lane, but the appellate court reversed, finding the summary judgment premature and an abuse of discretion where discovery was incomplete.


Holding

The trial court abused its discretion in granting summary judgment prior to the deposition of Dr. Lane. The court's concern with the expense of the deposition and perceived unlikelihood of obtaining additional relevant information was an improper basis for premature termination of discovery where material facts regarding the relationship between the doctors and entities involved remained unresolved.


Headnotes

[1] A trial court abuses its discretion by granting summary judgment before a party has had a reasonable opportunity to complete discovery.

[2] Summary judgment should not prematurely terminate discovery when the deposition of a key witness may reveal additional information creating a genuine issue of material fa…

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Key Quotes

“a summary judgment should not effect a premature termination of discovery”

Establishes the governing principle that discovery should not be improperly truncated by premature summary judgment

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Facts & Procedural History

Richard Derosa suffered serious permanent injury during a cardiac catheterization procedure at Shands Hospital. Dr. Hill and Dr. Lane, both fellows in…

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Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Appellants seek review of orders granting summary judgment for appellees Hill and Lane before appellants could depose Dr. Lane in an action raising the question of sovereign immunity in the context of medical malpractice. Appellants seek to have the orders declared premature so that they may be afforded the opportunity to continue discovery. We find that the trial court abused its discretion in granting summary judgment and we therefore reverse the orders appealed.

Appellant Richard Derosa was a patient at Shands Hospital, Inc., an independent non-profit corporation. During a cardiac catheterization procedure the patient suffered serious permanent injury. Dr. Hill assisted during the operation as a physician in training. Dr. Lane served as a resident, had been assigned to the patient’s case, and was also present during the surgery. The doctors were fellows in the College of Medicine of the University of Florida. Shands Hospital and the College of Medicine have a statutorily-authorized contractual agreement by which the college provides Shands with doctors and residents to perform patient services.

Appellants deposed Dr. Feldman (the supervising physician, who was also a member of the hospital staff at Shands) in January 1984 on the same day appellees filed motions for summary judgment. In July appellants deposed Dr. Hill and administrators of both the college and Shands. The contract between the two entities was presented to appellants at this time. In August 1984, despite appellants’ request for a continuance to depose Dr. Lane, the court granted appellees’ motions for summary judgment based on sovereign immunity.

Summary judgment is proper when the evidence presents no genuine issue of materia] fact. Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975). A trial court’s decision to grant summary judgment will be disturbed only upon an abuse of discretion. Southern California Funding, Inc. v. Hutto, 438 So. 2d 426 (Fla. 1st DCA 1983). However, a summary judgment should not effect a premature termination of discovery. See Suntogs of Miami, Inc. v. Burroughs Corp., 433 So. 2d 581 (Fla. 3d DCA 1983). In the controversy before us the record does not negate the possibility that the deposition of Dr. Lane may reveal additional information indicating a genuine issue of material fact. The prior affidavit of Dr. Lane, which was identical to the affidavit of Dr. Hill, did not conclusively establish all details of the relationship between the doctors and the various entities involved. Compare Testa v. Pfaff, 464 So. 2d 220 (Fla. 1st DCA 1985). The individual responsibilities of the two doctors could also raise a question as to whether Dr. Lane is possessed of information not encompassed within the deposition of Dr. Hill. And appellants’ counsel could arguably make more searching inquiries of Dr. Lane after having deposed the administrators and Dr. Hill, and having reviewed the contract between the college and Shands.

The record does not suggest that the time lapse which occurred between the filing of the motions for summary judgment in January, the taking of the depositions in July, and the subsequent request to further depose Dr. Lane, was a factor in the trial court’s decision to end discovery and grant summary judgment. Rather, the court appeared to be most concerned with the expense of deposing Dr. Lane and the perceived unlikelihood that any further relevant information might be obtained. We conclude that the entry of summary judgment on this basis, prior to the deposition of Dr. Lane, was an abuse of discretion.

The orders appealed are reversed and the cause remanded.

THOMPSON and WIGGINTON, JJ., concur.


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Citator

Cited By

  • …tant to grant a motion for summary judgment before the parties have had an opportunity to conduct discovery. A & B Pipe and Supply Co. v. Turnberry Towers Corp., 500 So. 2d 261 (Fla. 3d DCA 1986); Derosa v. Shands Teaching Hospital and Clinic, Inc., 468 So. 2d 415 (Fla. 1st DCA 1985); Cullen v. Big Daddy’s Lounges, Inc., 364 So. 2d 839 (Fla. 3d DCA 1978). In the present case, because appellant, a prisoner, encountered difficulty in getting answers to his questions, judicial enforcement of discovery was necess…
  • Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990)
    …here are discovery motions pending before the court. See Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987); A & B Pipe and Supply Co. v. Turnberry Towers Corp., 500 So. 2d 261 (Fla. 3d DCA 1986); DeRosa v. Shands Teaching Hospital and Clinic, Inc., 468 So. 2d 415 (Fla. 1st DCA 1985). There comes a time, however, when discovery should end. A party does not have an unlimited right to discovery prior to a hearing on a motion for summary judgment. When the record becomes clear enough to disclose that further d…
  • DeROSA v. Shands Teaching Hosp. & Clinics, Inc., 504 So. 2d 1313 (Fla. 1st DCA 1987)
    …s the opportunity to depose Dr. Lane prior to ruling on the motions for summary judgment, and that, at that stage of discovery, material fact issues existed to preclude entry of summary judgment. DeRo-sa v. Shands Teaching Hospital and Clinic, Inc., 468 So. 2d 415 (Fla. 1st DCA 1985). In his subsequent deposition, Dr. Lane stated that he received a paycheck from the Veterans Administration Hospital for services he performed at that hospital and at Shands. Dr. Hill had stated in his deposition that he received…

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