final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County, Peter R.
Lopez, Judge. Lower Tribunal No. 12-41665
D. Parrish, P.A. and Philip D. Parrish; The Law Offices of
Maria L. Rubio, P.A. and Maria L. Rubio, for appellants.
Shannin Law Firm, P.A. and Nicholas A. Shannin, B.C.S.
(Orlando); Lubell Rosen, LLC and Stephen L. Lubell (Ft.
Lauderdale), for appellee.
SUAREZ, SALTER, and LUCK [*] , JJ
Hortensia Martin ("Martin") and her husband and son
appeal judgment in favor of Appellee Jorge Jose Sowers, M.D.
after jury trial. We reverse finding that the trial court
erred in not granting summary judgment in favor of Appellants
on the issue of the statute of limitations. The trial
court's failure to do so then allowed Appellee to
inadvertently cloud the issues before the jury by enabling
him to consistently argue that Martin had knowledge of her
injury outside the scope of the statute of limitations and to
engage in a closing argument which misled the jury as to the
nature of the injury sued for. The cumulative effect of those
arguments constituted harmful error subject to reversal under
Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3d DCA
2015) and Murphy v. Int'l Robotic Sys., Inc.,
766 So.2d 1010 (Fla. 2000).
2008, when Martin was 35 years old, she had a mammogram which
was interpreted by Appellee, a radiologist. During the
proceedings at issue, Appellee gave a deposition in which he
admitted that in 2008 he "had a high degree of suspicion
that Martin had malignant breast cancer; that there was a
better than 70% probability that the suspicious speculated
mass he observed on the mammogram was cancer." However,
Appellee did not communicate that suspicion to Martin, or her
then-primary care physician. Instead, Appellee merely noted a
nodule on the mammogram and recommended that an ultrasound be
performed. Appellee's report on the mammogram did not use
any language typically used to inform the referring physician
that there was any sort of "non-routine" finding.
October 2008 Martin changed her primary care physician. In
November 2008 Martin received notice from Appellee's
practice group that she needed to have follow-up studies to
her July mammogram. When Martin contacted Appellee's
office for a copy of the mammogram, no one informed her that
there was any suspicion of breast cancer. The record below
contains some evidence that in November 2008 Martin
experienced some breast pain.
April 2009 Martin's new primary care physician ordered an
ultrasound of Martin's breast and did not report any
problems with that ultrasound. That physician saw Martin in
April, May and June 2009 and then left the practice group. In
April 2010 another ultrasound was performed on Martin and a
suspicious lesion was found. In May 2010 Martin was first
informed that she had breast cancer after a biopsy was
performed on the lesion. In August 2010 an MRI confirmed that
Martin had lesions on her spine and an October 2010 biopsy of
the bone lesion confirmed that Marin has metastatic disease
in her bones. Martin has undergone radiation and chemotherapy
and has had no recurrence of breast cancer, but the
metastatic cancer in her bones has never gone into remission
and is progressing.
properly filing for extensions of the statute of limitations
and serving medical malpractice pre-suit notices as required
under Florida Statute Section 766.106 (2010), Martin and her
husband and son filed suit against Appellee in October 2012.
From the beginning of the action Appellee attempted to argue
that Martin's injury arose in November 2008 when she
experienced some breast pain and that the statute of
limitations on any claim against Appellee expired before the
pre-suit filings were made. Despite Appellants' opposing
arguments that her theory of the case was that the claim
arose when the cancer appeared in other parts of her body,
and despite contrary controlling case law,  the trial court
concluded that the identity of Martin's injury was a jury
question. This was error under the undisputed facts of this
pleadings in this case make clear that Martin's actual
claim was not that any healthcare
professional caused her to have breast cancer as the trial
court appears to have understood. Instead, her
actual injury was the spread of that cancer to her bones and
Appellee conceded below that if Martin's claim was the
spread of metastatic cancer to her bones, he would lose his
claim on the statute of limitations. Appellee's continual
argument that Martin suffered pain in November 2008 and that
her claim therefore arose at that time simply did not address
Martin's actual claim and rested upon the theory that
Martin knew of her metastatic injury before
she even knew she had breast cancer. The trial court
continually expressed confusion as to the injury claimed by
repeatedly questioning why Martin's injury was not simply
the breast cancer - or, as argued by Appellee, the nodule
that was discovered in October 2008. The trial court even
went so far as to state "If I accept your version, then
I must grant your directed verdict."
the time-line was undisputed as to the date on which Martin
first learned she had breast cancer and as to the date on
which she first learned that she had metastatic cancer in her
bones, the trial court should have granted Martin's
motion for summary judgment on Appellee's defense of
statute of limitations. Martin properly filed pre-suit
notices and automatic extensions of time in 2011 and 2012 and
the filing of her Complaint in October 2012 was undisputedly
within the two-year statute of limitations - as extended - of
the discovery of her metastatic cancer in August 2010. To
paraphrase the Court in Johnson v. Mulee, 385 So.2d
1038 (Fla. 1st DCA 1980), the discovery of cancer
in other parts of her body was the actual event that
triggered the statute of limitations in this case.
"[S]ince no injury was discovered until [the MRI] and
since there is no evidence that injury should have been
discovered by [Martin] prior thereto with the exercise of
diligence, the cause of action likewise was not discovered
until that time. [Martin] could not have discovered a cause
of action prior to discovering she had been injured."
Id. at 1041.
even if the breast pain Martin suffered in 2008 was evidence
of breast cancer - which the record does not demonstrate --
her breast cancer is not - and could not be - the injury for
which Martin and her family sued Appellee. Wroy v. North
Miami Medical Center, Ltd., 937 So.2d 116 (Fla. 3d DCA
2006) (failure to diagnose breast cancer not cognizable