          Third District Court of Appeal
                                  State of Florida

                             Opinion filed August 30, 2017.
            Not final until disposition of timely filed motion for rehearing.
                                  ________________

                                    No. 3D15-290
                             Lower Tribunal No. 12-41665
                                 ________________

                             Hortensia Martin, et al.,
                                      Appellants,

                                           vs.

                            Jorge Jose Sowers, M.D.,
                                       Appellee.


      An appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez,
Judge.

      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.

        SUAREZ, J.




   Judge Luck did not participate in oral argument.
      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


1 At a minimum, the trial court should have granted Appellants’ Motion for
Directed Verdict on the issue, but we believe the granting of that motion would
have come too late in that Appellee’s argument had already misled and confused
the jury about the injury Martin claimed. The same is true with respect to
Appellants’ claim regarding the jury instructions – at a minimum the trial court
should have allowed the instruction as requested, but such ruling would have come
after the jury was already misled.

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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



                                        3
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
2 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.”).


                                         4
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

3  See, TR. 1284 “[APPELLEE’S COUNSEL]: …. Did she know she had
metastatic cancer by that date? Of course not. I’m not arguing that she did. If
that is the standard, I lose. If she had to know she had metastatic cancer prior
to that date, then I lose. I’m going to be the first one to admit that. …

                                         5
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 malpractice claim where

appellant failed to submit any evidence that the failure decreased life expectancy).

      Thus, Martin was entitled to summary judgment on the issue of the statute of

limitations. Moreover, the denial of her motion on that issue is not moot as argued

by Appellee because its denial allowed Appellee to make arguments which then

misled the jury throughout the trial as to the nature of Martin’s claim. Appellee

repeatedly directed the jury’s attention to the issue of what Martin 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



                                          6
Appellee stipulated that Martin was not comparatively negligent.             Appellee’s

closing argument4 is strong evidence of Appellee’s arguments that confused the

4   The pertinent portions of Appellee’s closing arguments stated:

               So now we get to the statute of limitations. So question
               number two is a statute of limitations question and here it
               goes: Did Hortensia Martin know or by the use of
               reasonable care should she have known on or before
               April 29, 2009 that she had sustained an injury, loss, or
               damage and that there was a reasonable possibility that
               the injury, loss or damage was caused by medical
               negligence. ….

               There’s a statute of limitation. The statute of limitations
               begins to run, it’s triggered – if you imagine a stopwatch,
               it starts the moment these two things happen, the things
               that are the second part of the question; One she knew or
               should have known she sustained an injury, and two, that
               she knew or should have known it was a reasonable
               possibility that the injury, loss, or damage was caused by
               medical negligence. The moment those two things start,
               the statute begins to run. That’s the way it works. It
               doesn’t say the lawsuit has to be filed by that date. It
               says those two things have to have occurred prior to that
               date, April 29, 2009.

               So answering this question is very simple. We need to
               simply answer this question. … First of all, let’s talk
               about the first prong. Had she sustained an injury, loss,
               or damage. Okay. Let’s talk about that. What is injury,
               loss or damage? Is metastasized cancer injury, loss or
               damage? Yes. Of course it is. But does it say in the
               question that she has to have sustained metastasized
               cancer? No, it does not. The question simply says:
               Had she sustained injury. It doesn’t say had she
               sustained the injury. It says sustained injury, loss or
               damage. [e.s.]


                                            7
jury as to what was at issue in the case. Because of the trial court’s incorrect
            I will tell you the Court carefully picks the words for
            each question that’s on this verdict form. These are the
            words and this is done by the Judge and the Judge picks
            these words because these are the words that are
            appropriate and these – this is the question and if you
            answer a question that’s not here, you are not doing your
            job. You’ve got to answer the question that’s here. Had
            she sustained injury.

            So what is the injury. Well that’s very simple, right?
            We know – we know – the first onset of injury she had
            in this case, what was it? She had a breast mass that
            caused pain. Well that’s not – that’s not the ultimate
            injury. You’re a hundred percent right. It’s not. A
            breast mass that caused pain. …

            [N]ot a single complaint up to June 2008. And then what
            happens? She goes for a mammogram, she gets her
            mammogram report, and then she starts to develop pain.
            Prior to that she was asymptomatic, meaning no pain, and
            now she develops pain. So we have to prove this. So
            remember at the beginning I told you – we’re going to
            talk about evidence and we’re going to talk about
            medical records. Well let’s talk about medical records[.]
            I am going to have some medical records I am going to
            show you that will prove that she had pain prior to this
            date. …

            So this is the history and this date is June 2010 – June 4th
            2010, and it says right here: Patient reports a one and a
            half year history of right breast mass associated with
            pain. Do the math. That gets you to 12/04/20[08]. It not
            just pain. It’s not just breast mass. It’s breast mass
            associated with pain. She didn’t have that at any time
            with [the first primary care physician]. None
            whatsoever. And then what happens? November she’s
            told she has a nodule and then shortly thereafter, just a
            few weeks, she starts to develop pain. Oh my God. Oh
            my God. Right in the spot where they told me I have a

                                         8
ruling, Appellee repeatedly informed the jury that because Martin had breast pain

in 2008 and that breast pain was documented in medical records, he had proven

that the statute of limitations had run on any claim Martin had against Appellee.

Again, that is simply not the claim made and is mischaracterization of the record.

Additionally, Appellee objected to an accurate description of the claimed injury

being placed in the jury instructions and then argued to the jury that the absence of

such a description was “carefully picked” by the trial court, again misleading the

jury.5 The focus of Appellee’s argument and his repeated misstatements as to what

Martin was claiming and when she had actual knowledge6 of her injury were

sufficiently egregious to warrant reversal despite the absence of objection by


             nodule, now I am developing pain. The statute/trigger
             has been set because it is prior to April 29, 2009. June
             – December 2008 is prior to April 2009. The trigger
             has been set. She knows she has pain. She admits it
             to the surgeon a year and a half later. …

             We have two medical records, absolute
             uncontroverted medical evidence, that shows she has
             breast pain prior to that date. That answers question
             number one. There you go. You’ve got your question
             to – answer to—number one. I proved it.

TR. 1496-1503.
5 This argument is analogous to those made and reversed in Carnival Corp. v.

Pajares, 972 So. 2d 973, 977-978 (Fla. 3d DCA 2007) and Hernandez v. Home
Depot, U.S.A., Inc., 695 So. 2d 848 (Fla. 3d DCA 1997).
6Tanner v. Hartzog, 618 So. 2d 177, 181 (Fla. 1993) (knowledge of injury includes
knowledge that it could have been caused by medical malpractice).

                                         9
Martin. Those comments went directly to the heart of the case and constituted

fundamental error which deprived Martin of a fair and impartial trial. Fasani v.

Kowalski, 43 So. 3d 805, 811 (Fla. 3d DCA 2010) (cumulative effect of numerous

improper comments and arguments operated to deprive appellants of fair trial);

Chin v. Caiaffa, 42 So. 3d 300, 309 (Fla. 3d DCA 2010) (inflammatory and

prejudicial comments and improper conduct required reversal); SDG Dadeland

Assocs., Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008); Kaas v. Atlas

Chem. Co., 623 So. 2d 525, 526 (Fla. 3d DCA 1993).

      In light of our reversal, we do not specifically address the additional claims

raised by Appellant. However, in any re-trial which may occur in this matter, it

should be noted that expert testimony is required before a claim of third-party

causation may be presented to the jury in the context of a medical malpractice

claim. Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984);

Chaskes v. Gutierrez, 116 So. 3d 479 (Fla. 3d DCA 2013).

      Based on the cumulative errors discussed above, we reverse and remand for

further proceedings consistent with this opinion.

      SALTER, J., concurs.




                                         10
LUCK, J., dissenting:

      The majority opinion concludes that the combination of the trial court

denying Mrs. Martin’s motions for summary judgment and directed verdict on the

statute of limitations defense, and Dr. Sowers’ closing argument comments about

the same defense, confused the jury about the nature of Mrs. Martin’s injuries such

that it reached the level of fundamental error. To me, these errors were not the

“exceedingly rare” kind that are “so significant that it deprived one party of the

right to a fair trial and due process.” Coba v. Tricam Indus., Inc., 164 So. 3d 637,

646 (Fla. 2015). I respectfully dissent.

      The jury in this medical malpractice case was not affected by the statute of

limitations errors alleged by Mrs. Martin because it answered no when asked

whether there was negligence on the part of Dr. Sowers that was the legal cause of

Mrs. Martin’s injury, loss or damage. Letting the jury hear evidence and argument

about the statute of limitations defense did not deprive Mrs. Martin of her right to a

fair trial because the jury did not decide the statute of limitations issue. The jury

stopped after the first question on the verdict form which asked about Dr. Sowers’

negligence. Having found Dr. Sowers not negligent, the jury did not consider the

statute of limitations defense, which was the second question on the verdict form.

See Rosenfeld v. Seltzer, 993 So. 2d 557, 560 (Fla. 4th DCA 2008) (“That being

the case, the jury would not have considered the negligence of the child unless it



                                           11
first found negligence of Mr. Seltzer, which it failed to do. Because the jury did

not reach the question of comparative negligence, any error in the giving of the

instruction on section 316.130(8) was harmless.”); Aetna Cas. & Sur. Co. v.

Seacoast Transp. Co., 528 So. 2d 480, 481 (Fla. 3d DCA 1988) (“Next, Dolphin

cites error in the trial court’s giving an instruction on comparative negligence. We

find no merit in its position. . . . More significant, however, is the fact that the jury

did not reach the issue of Dolphin’s comparative negligence. The jury returned a

special verdict finding no negligence on the part of Seacoast. Thus, it is evident

the jury did not address the question of Dolphin's comparative negligence and no

error appears. (citations and footnote omitted)).

      Dr. Sowers’ confusing closing argument about Mrs. Martin’s injury (breast

cancer vs. the metastasized cancer to the bones, quoted at length in footnote four),

likewise, did not impact whether Dr. Sowers was negligent in missing or delaying

the diagnosis, which was the first question the jury was asked and the only one it

answered. There was independent competent substantial evidence (Dr. Hurwitz’s

expert testimony, for example), having nothing to do with the statute of limitations

defense, supporting the jury’s verdict that Dr. Sowers radiology services met the

standard of care.

      In other words, whatever injury resulted – breast cancer or the spread of

breast cancer to Mrs. Martin’s bones – it did not affect the issue ultimately decided



                                           12
by the jury: whether Dr. Sowers’ radiology decisions in July 2008 were negligent.

Because one has nothing to do with the other, I cannot say that the statute-of-

limitations-defense errors deprived Mrs. Martin of due process and a fair trial for

fundamental error purposes on the negligence verdict. The errors being harmless, I

would affirm the judgment for Dr. Sowers.




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