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Martin v. Sowers

Florida Court of Appeals, Third District

August 30, 2017

Hortensia Martin, et al., Appellants,
v.
Jorge Jose Sowers, M.D., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge. Lower Tribunal No. 12-41665

          Philip 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.

          Before SUAREZ, SALTER, and LUCK [*] , JJ

          OPINION

          SUAREZ, J.

         Appellant 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.[1] 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).

         In July 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.

         In 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.

         In 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.

         After 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, [2] the trial court concluded that the identity of Martin's injury was a jury question. This was error under the undisputed facts of this case.

         The 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.[3] 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."

         Because 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.

         Moreover, 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 medical ...


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