The Third District Court of Appeal State of Florida (“Florida Appellate Court”) held in a 2 to 1 opinion filed on August 30, 2017 that the trial court erred in not granting summary judgment in favor of the Florida Medical Malpractice plaintiff on the issue of the statute of limitations, and that the trial court’s failure to do so then allowed the defendant to inadvertently cloud the issues before the jury by enabling him to consistently argue that the plaintiff 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 which constituted harmful error subject to reversal.

The plaintiff had a mammogram in July 2008 and the defendant radiologist, who interpreted the plaintiff’s July 2008 mammogram, had a high degree of suspicion that the plaintiff had malignant breast cancer and that there was a better than 70% probability that the suspicious speculated mass he observed on the mammogram was cancer, but he did not communicate that suspicion to the plaintiff or to her primary care physician at that time but instead merely noted a nodule on the mammogram and recommended that an ultrasound be performed, without using any language typically used to inform the referring physician that there was any sort of “nonroutine” finding.

In November 2008, at which time the plaintiff experienced some breast pain, she received notice from the defendant radiologist’s practice group that she needed to have follow-up studies to her July 2008 mammogram. When the plaintiff contacted the defendant’s office for a copy of the July 2008 mammogram, no one informed her that there was any suspicion of breast cancer.

In April 2009, the plaintiff’s new primary care physician ordered an ultrasound of the plaintiff’s breast and did not report any problems with that ultrasound. In April 2010, another ultrasound was performed on the plaintiff and a suspicious lesion was found. In May 2010, the plaintiff was first informed that she had breast cancer after a biopsy was performed on the lesion. In August 2010, an MRI confirmed that the plaintiff had lesions on her spine. In October 2010, a biopsy of the bone lesion confirmed that the plaintiff has metastatic disease in her bones.

The plaintiff had 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.

The plaintiff’s Florida medical malpractice lawsuit alleged that her claim (injury) arose when the cancer appeared in other parts of her body. The defense argued that the plaintiff’s injury arose in November 2008, when she experienced some breast pain, and that the statute of limitations on any claim against the defendant radiologist expired before the pre-suit filings were made. The trial court concluded that the identity of the plaintiff’s injury was a jury question. The subsequent Florida medical malpractice trial resulted in the jury finding in favor of the defendant. The plaintiff appealed.

The Florida Appellate Court stated that the pleadings in this case make clear that the plaintiff’s actual claim was not that any healthcare professional caused her to have breast cancer, as the trial court appears to have understood, but, instead, her actual injury was the spread of that cancer to her bones (the defendant had conceded in the trial court that if the plaintiff’s medical malpractice claim was the spread of metastatic cancer to her bones, he would lose his claim on the statute of limitations).

The Florida Appellate Court stated that the defendant’s continual argument that the plaintiff suffered pain in November 2008 and that her claim therefore arose at that time simply did not address the plaintiff’s actual claim and rested upon the theory that the plaintiff knew of her metastatic injury before she even knew she had breast cancer.

The Florida Appellate Court held that because the time-line was undisputed as to the date on which the plaintiff 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 the plaintiff’s motion for summary judgment on the defendant’s defense of statute of limitations (even if the breast pain the plaintiff suffered in 2008 was evidence of breast cancer, her breast cancer is not, and could not be, the injury for which the plaintiff sued the defendant radiologist).

Furthermore, the denial of the plaintiff’s motion for summary judgment on the issue of the statute of limitations was not moot: because of the denial of the plaintiff’s motion for summary judgment on the issue of the statute of limitations, the defense was allowed to make arguments which then misled the jury throughout the trial as to the nature of the plaintiff’s medical malpractice claim (the defense repeatedly directed the jury’s attention to the issue of what the plaintiff knew and when she knew it – questions wholly unrelated to the issue of the spread of cancer to her bones and questions which should not have been discussed with the jury where the defense stipulated that the plaintiff was not comparatively negligent).

The dissenting appellate judge argued that the jury in this medical malpractice case was not affected by the statute of limitations errors alleged by the plaintiff because the jury answered no when asked whether there was negligence on the part of the defendant radiologist that was the legal cause of the plaintiff’s injury, loss or damage.

Nonetheless, the majority opinion held that the combination of the trial court denying the plaintiff’s motion for summary judgment and directed verdict on the statute of limitations defense, and the defendant’s closing argument comments about the same defense, confused the jury about the nature of the plaintiff’s injuries such that it reached the level of fundamental error, requiring reversal and remand for a new trial.

Source Martin v. Sowers, No. 3D15-290

If you or a family member may have suffered serious injury (or worse) due to a radiologist misreading a CT scan, an MRI, an x-ray, or another radiology test in Florida or in another U.S. state, you should promptly find a medical malpractice lawyer in Florida or in your U.S. state who may investigate your radiology malpractice claim for you and represent you in a medical malpractice claim against a radiologist, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys in your state who may assist you.

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