Martin v. Jorge Jose Sowers, M.D.
15-0290
| Fla. Dist. Ct. App. | Aug 30, 2017Background
- In July 2008 Dr. Sowers (radiologist) read Martin’s screening mammogram and testified he had a >70% suspicion of malignancy but did not communicate that suspicion to Martin or her PCP; he recommended ultrasound and documented a nodule without routine non‑routine language.
- Martin had follow‑up contacts in Nov 2008 (practice group notice) and experienced some documented breast pain; ultrasounds in April 2009 and April 2010 occurred, and biopsy in May 2010 diagnosed breast cancer.
- An August 2010 MRI and October 2010 bone biopsy confirmed metastatic disease to Martin’s spine; metastatic bone disease has been progressive despite treatment.
- Martin filed pre‑suit notices and timely sued in October 2012 after obtaining statutory extensions; defendant argued the claim accrued no later than Nov/Dec 2008 (breast pain) so the suit was time‑barred.
- The trial court denied Martin’s motions for summary judgment and directed verdict on statute‑of‑limitations grounds; the case went to jury and verdict favored Dr. Sowers.
- The appellate majority reversed, holding the undisputed timeline established the accrual (statute trigger) occurred with discovery of metastatic disease and that the trial court’s rulings allowed misleading argument that produced fundamental error; a dissent disagreed, finding any errors harmless because the jury found no negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper accrual trigger for medical‑malpractice SOL | Accrual triggered when Martin learned cancer had metastasized (Aug/Oct 2010); claims filed within extended period | Accrual triggered earlier when Martin had breast pain and nodule (late 2008), so action untimely | Accrual was when metastatic cancer was discovered; summary judgment on SOL should have been granted for Martin (majority) |
| Whether trial court should have granted summary judgment/directed verdict on SOL | Undisputed facts required judge to resolve SOL as a matter of law in Martin’s favor | Fact question existed about what injury was claimed and when plaintiff knew | Trial court erred by denying summary judgment/directed verdict on SOL given undisputed timeline and claim of metastatic spread |
| Prejudice from defendant’s closing argument and jury confusion | Defendant’s repeated emphasis on 2008 pain and objections to jury instruction mischaracterized the claim and confused jury as to what injury was sued for, producing fundamental error | Any errors were harmless—jury found no negligence so SOL issues did not affect outcome (dissent) | Majority: cumulative effect of misleading argument and denial of summary relief constituted reversible error; dissent: harmless error because jury answered negligence question negatively |
| Presenting third‑party causation to jury | Expert testimony is required to submit third‑party causation in medical‑malpractice trial | N/A | Court notes that if retried, third‑party causation requires expert proof before jury (remand guidance) |
Key Cases Cited
- Vargas v. Gutierrez, 176 So. 3d 315 (Fla. 3d DCA 2015) (cumulative improper argument can require reversal)
- Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000) (standards for fundamental error and prejudice analysis)
- Johnson v. Mullee, 385 So. 2d 1038 (Fla. 1st DCA 1980) (medical‑malpractice accrual when cancer discovered in other parts of the body)
- Wroy v. North Miami Med. Ctr., Ltd., 937 So. 2d 116 (Fla. 3d DCA 2006) (diagnosis of breast cancer alone is not actionable malpractice absent evidence of effect on life expectancy)
- Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (knowledge that injury may have been caused by malpractice necessary to trigger SOL)
- Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984) (expert‑testimony requirement for medical causation issues to go to jury)