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Florida Third DCA reverses trial verdict and judgment for defendant in medical negligence case, finding that jury improperly heard evidence and argument about statute of limitations

On August 30, 2017, in Martin v. Sowers, No. 3D15-290, the Florida Third DCA reversed a trial verdict and judgment for a defendant doctor in a medical negligence case, concluding that the trial court’s erroneous denial of the plaintiff’s motion for summary judgment on the statute of limitations issue allowed the defendant to inadvertently cloud the issues before the jury. The plaintiff had undergone a mammogram in July 2008 with respect to which the defendant radiologist had reportedly failed to communicate his high degree of suspicion of malignant breast cancer. The plaintiff did not learn of the breast cancer until almost two years later in April 2010, by which time the cancer had metastasized to her bones. From the beginning of the action, the defendant doctor attempted to argue that 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 doctor therefore expired before the pre-suit filings were made tolling the statute. The trial court denied the plaintiff’s summary judgment motion on this issue, notwithstanding the fact that the pleadings in the case, according to the Third DCA, made clear that the plaintiff’s claim was not that the defendant’s negligence had caused her breast cancer, but that the delay in diagnosis was a legal cause of the metastatic cancer in her bones. The Third DCA approvingly cited Johnson v. Mullee, 385 So. 2d 1038 (Fla. 1st DCA 1980) (medical malpractice cause of action arose when cancer appeared in other parts of body); Wroy v. North Miami Med. Ctr., Ltd., 937 So. 2d 116 (Fla. 3d DCA 2006) (diagnosis of breast cancer without any proof of spreading of the cancer not actionable). See also, Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (“knowledge of the injury as referred to in rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice”).

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