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Florida Second DCA rules that doctor’s alleged failure to identify cancer on successive x-rays constituted discrete acts of negligence each subject to its own statute of limitations

On October 18, 2019, in Santiago v. Rodriguez, No. 2D18-3114, the Florida Second DCA considered an appeal in which the plaintiffs, the two surviving children of a woman who died of lung cancer that allegedly had been negligently undiagnosed by the defendant doctor, appealed the trial court’s dismissal of their medical negligence case on two grounds. First, the trial court ruled that the lawsuit was barred by the four-year statute of repose applicable to medical negligence cases. Although the trial court did not specifically state the grounds for this ruling, the Second DCA noted that the lawsuit was filed in August 2017, more than four years after the first alleged acts of negligence in the complaint (the doctor had allegedly failed to notify the patient that CT scans conducted in 2009 and 2013 disclosed the possibility of a lesion or taken any action to address this possibility). The Second DCA noted that it considered materially similar circumstances in Woodward v. Olson, 107 So. 3d 540 (Fla. 2d DCA 2013). In that case, the court held that the defendant physician's alleged failures in 2002, 2005, and 2008 to inform his patient of the suspicious findings in her chest X-rays or to order follow-up testing recommended by the radiologists were discrete incidents of alleged malpractice, each of which was subject to its own four-year statute of repose with respect to the patient's suit for medical malpractice arising from her subsequent lung cancer diagnosis. In the instant case, the Second DCA noted that the complaint and attachments reflect only the dates on which the CT scans were performed, not when the alleged incidents of malpractice, i.e., the failures to inform the patient of the scan results or to order follow-up tests, took place. As such, the Second DCA concluded that face of the complaint did not conclusively show that the action was barred under the statute of repose and dismissal on that ground was not supported.

However, the Court ruled for the defendant on the second ground alleged for the dismissal, Fla. Stat. § 768.21(8), the provision in Florida’s Wrongful Death Act that specifically excludes medical negligence cases from the general inclusion of adult children as potential statutory survivors in wrongful death actions. The plaintiffs contested the constitutionality of this provision, arguing that the medical malpractice crisis upon which the statute's validity depended no longer exists, citing in support Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), in which the Florida Supreme Court made such a finding in striking down the statutory caps on noneconomic damages in cases of wrongful death resulting from medical malpractice. The Second DCA disagreed because another Florida Supreme Court case, Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000), specifically upheld the same class limitation at issue in this case. However, the Second DCA certified the issue to the Florida Supreme Court as of great public importance.