PAUL A. THOMPSON, M.D., PETITIONER,
v.
MARISSA DEANE, A MINOR, ETC., ET AL., RESPONDENT
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A physician defendant in a medical malpractice action sought certiorari review of a trial court order denying his motion to dismiss an amended complaint alleging he negligently failed to disclose his surgical experience and hospital support limitations to parents before operating on a minor child. The appellate court denied the certiorari petition, holding that the order was not properly reviewable by certiorari because adequate remedies existed on plenary appeal.
The court held that the order denying the motion to dismiss was not properly reviewable by certiorari because an adequate remedy existed through plenary appeal. Similarly, the rulings on the oral motions for continuance and to reopen discovery could be raised on plenary appeal and did not warrant certiorari review. The court noted that trial courts have discretion in granting continuances and managing discovery, and such rulings should only be disturbed upon showing of abuse of discretion or irreparable harm.
[1] An order denying a motion to dismiss a claim is generally not reviewable by certiorari, as an adequate remedy exists by plenary appeal.
[2] Rulings on oral motions for continuance and to reopen discovery are generally reviewable on plenary appeal, not by certiorari.
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Join FLexlaw to unlock all legal intelligence“An order denying a motion to dismiss a claim is generally not reviewable by certiorari, as there is an adequate remedy by plenary appeal.”
Establishes the fundamental principle that certiorari is not the appropriate remedy for reviewing orders denying motions to dismiss
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Join FLexlaw to unlock all legal intelligenceDr. Paul Thompson treated a minor child and the child suffered severe and permanent injury. Following a mistrial, respondents obtained leave to file a…
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DAUKSCH, Judge.
Petitioner, Paul A. Thompson, M.D., defendant in a medical malpractice action, seeks certiorari review of an order denying his motion to dismiss a portion of respondents’ fourth amended complaint, and motions for continuance and to reopen discovery.
Respondents allege that petitioner was negligent in his treatment of a minor child, resulting in severe and permanent injury. Following a mistrial, trial has been rescheduled for January 12, 1998. Respondents have been allowed to amend their complaint to allege petitioner’s negligence in not informing the parents of the minor child before surgery of his experience or lack thereof in performing such surgery, and of the inadequate backup surgical support at the hospital. Petitioner moved to dismiss this amendment, asserting that it failed to state a cause of action, in that there is no duty for a physician to affirmatively disclose his experience in performing surgery.
The trial court denied the motion to dismiss after a hearing. Following that ruling, petitioner orally moved to reopen discovery for the limited purpose of gaining information regarding the new negligence allegation. Petitioner further moved to continue the trial for purposes of discovery and preparation. Petitioner also advised the trial court of the need to add additional expert witnesses.
The trial court denied the oral motions for continuance and to reopen discovery.
The trial court allowed petitioner to add an additional expert to address the new allegation.
An order denying a motion to dismiss a claim is generally not reviewable by certiorari, as there is an adequate remedy by plenary appeal. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987); Thompson v. Thompson, 635 So. 2d 1064 (Fla. 5th DCA 1994).
Likewise, the rulings on the oral motions may be raised on plenary appeal. Whether to grant a continuance is a matter falling within the trial judge’s discretion, and a ruling should be disturbed only when that discretion is abused. See State v. McCarthy, 585 So. 2d 1167 (Fla. 4th DCA 1991).
As the trial court denied additional discovery, there was no compelling need to grant a continuance. Discovery issues, too, are matters within the trial judge’s discretion, and rulings should be disturbed only upon a showing of irreparable harm. As the trial court did not compel discovery in this case, but simply denied additional discovery, the issue may be raised on plenary appeal. See Palmer v. WDI Systems, Inc., 588 So. 2d 1087 (Fla. 5th DCA 1991).
The petition for writ of certiorari is therefore denied. However, we emphasize that our holding is solely based on the limited scope and availability of certiorari in reviewing non-final orders. This decision in no way addresses the merits of petitioner’s substantive issue concerning the recent amendment to respondents’ complaint, which should be raised on plenary appeal, if necessary.
PETITION DENIED.
COBB and ANTOON, JJ. concur.
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Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Palmer v. WDI Sys., Inc., 588 So. 2d 1087 (Fla. 5th DCA 1991)
- State v. McCARTHY, 585 So. 2d 1167 (Fla. 4th DCA 1991)
- Thompson v. Thompson, 635 So. 2d 1064 (Fla. 5th DCA 1994)