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CONTINUED MALPRACTICE INCIDENTS

The Florida Second District Court of Appeals recently issued an opinion addressing continued discrete incidents of medical malpractice. Medical malpractice cases in Florida are challenging and pose substantial hurdles in terms of investigation and procedural matters. Cases are often even more challenging when the injured party is faced with both investigation and procedural matters at the same time.

In the case of Woodward v. Olson, 107 So.3d 540 (Fla. 2nd DCA 2013) the Plaintiff/Patient was faced with this challenge. It began when the patient had chest x-rays done in September 2002, August 2005, and January 2008, with follow up appointments with her primary care doctor. At each x-ray the radiologist's report recommended further testing for suspicious-looking areas in the patient's right lung, but unfortunately the patient's primary care doctor never disclosed the radiologist's recommendations with the patient. As a result no further testing was done and after switching primary care doctor's the patient learned that she had stage IV cancer in her right lung.

Based on these facts the patient sued her previous primary care doctor for malpractice alleging that the doctor had been negligent "commencing with the office visit of September 17, 2002, and on each visit thereafter". As part of the doctor's defense he moved for summary judgment arguing that the statute of repose (a statute limiting when a claim may be raised) had begun to run in September 2002 and expired four years later. The trial court granted the doctor's motion and an appeal was taken.

The Second District Court of Appeals reversed the trial court ruling and held that although the statute of repose had expired for purposes of the doctor's negligence acts in 2002 and 2005, each incident when a chest x-ray was taken and the doctor failed to tell the patient about the radiologist's recommendations constituted a discrete incident of malpractice, with its own statute of repose. Thus, this ruling magnifies that there may be continued malpractice incidents that have to be investigated in order to address the viability of a malpractice case and in order to deal with the investigation and procedural hurdles a Plaintiff must overcome.