Whack v. Seminole Memorial Hospital, Inc.

487 So. 2d 1091 | Fla. Dist. Ct. App. | 1986

DAUKSCH, Judge.

This is an appeal from a summary judgment in a medical malpractice suit.

Appellee is an anesthetist who was sued based upon allegations that a woman in his care died as a result of medical negligence. After being sued appellee served two sets of requests for admissions upon the plaintiff’s lawyer. The plaintiff neither answered nor objected to the requests for admissions. Over two years after the requests for admissions were received by the plaintiff the defendant moved for summary judgment. After the motion for summary judgment was served the plaintiff then asked the court for leave to file the answers to the requests for admissions. A hearing was held where the trial judge apparently heard the motion for leave to file the late answers, as well as the motion for summary judgment. The court denied the motion for leave to file late answers and found “... there was no clerical error, brief delay or excusable inadvertance in Plaintiffs’ failure to respond to Requests to Admit for in excess of two (2) years.”

The hearing at which the plaintiff’s attorney had the opportunity and presumably did offer his reasons for not filing the answers was not recorded so we have no knowledge in that regard. The trial judge’s ruling is presumptively correct, so we have no choice but to affirm his findings and the order.

It is with great reluctance that we affirm the order, as we are sure it was with great reluctance the trial judge declared the plaintiffs could receive no relief for their alleged injuries by the anesthetist. We note that by a slow but certain attrition the plaintiffs continue to lose defendants to take to trial. See Whack v. Seminole Memorial Hospital, Inc., 456 So.2d 561 (Fla. 5th DCA 1984).

The plaintiffs having demonstrated no judicial abuse, the order and judgment are affirmed.

AFFIRMED.

ORFINGER and COWART, JJ., concur.