GINA FRANCES PERRY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GUY C. PERRY, APPELLANT,
v.
LINDA ANN SCHLUMBRECHT, M.D., APPELLEE; GINA FRANCES PERRY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GUY C. PERRY, APPELLANT, V. QUIK CARE OF FLORIDA, INC., APPELLEE
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The estate of Guy C. Perry appealed the dismissal of its medical malpractice complaint against a medical facility and physician. The trial court dismissed the complaint as time-barred under the wrongful death statute of limitations, concluding it alleged simple negligence rather than medical malpractice. The appellate court reversed as to the facility but dismissed the appeal as to the physician due to lack of jurisdiction.
The court held that the complaint, although not a model pleading, adequately stated a cause of action for medical malpractice. Because the statute of limitations was properly tolled by provisions of the Medical Malpractice Act, the complaint was timely filed and was improperly dismissed as to Quik Care. The appeal as to Dr. Schlumbrecht was dismissed due to lack of jurisdiction because pending counts remained between the parties.
[1] An appeal from a nonfinal order is dismissed for lack of jurisdiction when a related count between the parties remains pending in the circuit court.
[2] A motion to dismiss for failure to state a cause of action requires the court to consider only the allegations within the four corners of the complaint.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A motion to dismiss for failure to state a cause of action is not a substitute for a motion for summary judgment, and in ruling on such a motion the trial judge is confined to a consideration of the allegations found within the four corners of the complaint.”
Establishes the proper standard of review for a motion to dismiss—courts must only consider allegations within the complaint itself.
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Join FLexlaw to unlock all legal intelligenceGuy C. Perry died following an incident at Quik Care of Florida, Inc. The estate, represented by Gina Frances Perry, filed a complaint against Quik Ca…
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BLUE, Judge.
Gina Frances Perry, as personal representative of the estate of Guy C. Perry, appeals the trial court’s orders dismissing with prejudice her complaint against Quik Care of Florida, Inc., and Linda Ann Schlumbrecht, M.D. The trial court determined that the complaint stated claims based on wrongful death, rather than medical malpractice, and accordingly dismissed the complaint as time-barred by the statute of limitations. As to Quik Care, we reverse; as to Dr. Schlumbrecht, we dismiss the appeal.
Although these cases were not consolidated on appeal, we review them together because they arise from the same incident and involve similar issues. However, we are compelled to dismiss the appeal involving Dr. Schlumbrecht because a count between the parties, arising out of the same incident, remains pending in the circuit court. Accordingly, we lack jurisdiction over this non-appealable, nonfinal order, and therefore appeal number 98-00095 is dismissed. See S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974). There are no pending counts between Perry and Quik Care and therefore we have jurisdiction over that appeal.
Following the untimely death of Guy Pei'-ry, his estate pursued its complaint against Quik Care and Dr. Schlumbrecht, complying with all the statutory requirements of the Medical Malpractice Act, chapter 766, Florida Statutes (1993). After the complaint was filed, the defendants moved to dismiss on the basis that the complaint alleged wrongful death due to simple negligence, as opposed to medical malpractice, and was barred by the applicable two-year wrongful death statute of limitations. The defendants relied on Silva v. Southwest Florida Blood Bank, Inc., 601 So. 2d 1184 (Fla.1992), and Lynn v. Mount Sinai Medical Center, Inc., 692 So. 2d 1002 (Fla. 3d DCA 1997). It was the defendants’ position that although the plaintiffs cause of action arose out of an incident that occurred at a medical care facility, the incident did not involve a “medical service” and therefore the complaint alleged simple negligence.
The question involved in this appeal is not whether the incident, as alleged, involved potential medical malpractice or simple. negligence. The question is whether the amended complaint states a cause of action for medical malpractice. A motion to dismiss for failure to state a cause of action is not a substitute for a motion for summary judgment, and in ruling on such a motion the trial judge is confined to a consideration of the allegations found within the four corners of the complaint. See Thompson v. Martin, 530 So. 2d 495, 496 (Fla. 2d DCA 1988). Further, “all material allegations of the complaint are taken as true, and the court is not permitted to speculate as to whether the allegations will ultimately be proven.” Maciejewski v. Holland, 441 So. 2d 703, 704 (Fla. 2d DCA 1983).
Although the plaintiffs complaint was not a model pleading, we find that it adequately stated the plaintiffs chosen cause of action for medical malpractice. Because the statute of limitations was properly tolled by provisions of the Medical Malpractice Act, the complaint was timely filed and was, therefore, improperly dismissed. While the complaint survives the motion to dismiss as to what cause of action was pleaded, we point out that the plaintiff agreed the complaint was in need of amendment.
Accordingly, the dismissal as to Quik Care is reversed and the case is remanded for further proceedings. Appeal number 98-00095 involving Dr. Schlumbrecht is dismissed.
THREADGILL, A.C.J., and CASANUEVA, J., Concur.
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Barbado v. Green & Murphy, P.A., 758 So. 2d 1173 (Fla. 4th DCA 2000)…ismissal for lack of personal jurisdiction where the trial court had considered sworn affidavits filed on behalf of the defendant, which tended to show that it was protected from the suit by sovereign immunity); see also Perry v. Schlumbrecht, M.D., 724 So. 2d 1239 (Fla. 2d DCA 1999)(holding that, on motion to dismiss, it was error for trial court to consider whether the incident, as alleged, involved potential medical malpractice or simple negligence instead of merely [*1175] whether the amended complaint sta…
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Johnie A. McLEOD and Eloise W. McLeod v. Barber, 764 So. 2d 790 (Fla. 5th DCA 2000)…court. The dismissal of one or more but not all counts of a multi-count complaint is a non-final ruling from which a direct appeal can not be taken. See Venezia A., Inc. v. Askew, 314 So. 2d 254 (Fla. 1st DCA 1975); see also Perry v. Schlumbrecht, 724 So. 2d 1239 (Fla. 2d DCA 1999); Coletti v. Aultman Constr. Co., 631 So. 2d 382 (Fla. 3d DCA 1994). Application of this case law to the instant facts indicates that this court lacks jurisdiction to review by direct appeal the trial court’s ruling dismissing the…
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Brook Anderson v. Ira Epstein, 202 So. 3d 893 (Fla. 3d DCA 2016)…I through V. Because Count VI remains pending below, Anderson’s appeal of the dismissal of Counts I, III, IV and V concerns a non-final, non-appealable order. See Santana v. Fla. Int’l Univ., 922 So. 2d 242 (Fla. 3d DCA 2006); Perry v. Schlumbrecht, 724 So. 2d 1239 (Fla. 2d DCA 1999); Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238 (Fla. 4th DCA 1995). Accordingly, we dismiss Anderson’s appeal with regard to the Association.1 B. Dismissal of claims against Epstein and the Trustee 1. The Trustee…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184 (Fla. 1992)
- Tongala Lynn v. Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002 (Fla. 3d DCA 1997)
- MacIejewski v. William M. Holland, Jr., P.A., 441 So. 2d 703 (Fla. 2d DCA 1983)
- R.F. Thompson v. P.W. Martin, 530 So. 2d 495 (Fla. 2d DCA 1988)
- Dearmas v. State, 530 So. 2d 495 (Fla. 2d DCA 1988)