A South Florida woman whose undiagnosed breast cancer spread to her bones won reversal in a medical malpractice case against her radiologist after an appellate court found some defense claims shouldn’t have gone to trial.
The trial judge’s decision to let a statute-of-limitations question go to trial opened the doors for Dr. Jorge Sowers’ attorneys to “inadvertently cloud the issues” and mislead jurors about his former patient’s claims, a Third District Court of Appeal panel ruled 2-1 Wednesday.
“The focus of [Sowers]‘ argument and his repeated misstatements as to what Martin was claiming and when she had actual knowledge of her injury were sufficiently egregious to warrant reversal despite the absence of objection by Martin,” Third DCA Judges Richard Suarez and Vance Salter found. “Those comments went directly to the heart of the case and constituted fundamental error which deprived Martin of a fair and impartial trial.”
Martin claimed Sowers failed to tell her or her primary care doctor that he found a mass he believed was cancerous. Sowers admitted in a deposition he was 70 percent sure Martin had malignant breast cancer after conducting a mammogram in July 2008, according to the court record.
Martin learned she had breast cancer in 2010 and soon found out it spread to her bones. Her breast cancer has not recurred since she completed radiation and chemotherapy, but the bone cancer is still progressing.
When Martin filed a motion for summary judgment, Miami-Dade Circuit Judge Peter Lopez denied it, finding a jury should weigh Sowers’ argument that the statute of limitations had run for Martin’s claims based on when she first started feeling breast pain in 2008.
But the appellate court found Martin’s theory of the case was that her claim arose when the cancer spread to her bones. Lopez erred by concluding that the identity of her injury was a jury issue, the court ruled.
“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,” the judges wrote. “Instead, her actual injury was the spread of that cancer to her bones and [Sowers] 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.”
Sowers’ attorneys “repeatedly directed the jury’s attention to the issue of what Martin knew and when she knew it,” which was irrelevant to the matter of her cancer spreading, the court ruled. In the end, the jury found Sowers was not negligent and did not reach the question on the verdict form about the statute of limitations.
Third DCA Judge Robert Luck dissented, reasoning the trial judge’s alleged errors didn’t affect the jury’s ruling because they never got to the second question.
“The errors being harmless, I would affirm the judgment for Dr. Sowers,” he wrote.
Sowers’ appellate attorney, Nicholas Shannin of the Shannin Law Firm in Orlando, said he and co-counsel Stephen Lubell of the Lubell Rosen in Fort Lauderdale are reviewing the opinion and “will take the appropriate action in a timely manner consistent with our appellate options.”
Martin was represented by Miami solo practitioners Philip Parrish and Maria Rubio. Parrish did not respond to a request for comment by deadline.