Court examines reach of Florida’s long-arm statute in cancer malpractice case

Florida’s “long-arm” statute authorizes an Orlando woman to sue the Memorial Sloan Kettering Cancer Center and her former New York doctors for alleged malpractice, her attorney assured the Florida Supreme Court on Thursday.

“Words matter,” West Palm Beach attorney Kara Rockenbach Link told justices. “And the Florida Legislature chose broad words, they’re not narrow, they’re not limiting, and they don’t have exceptions.”

A central issue in Janet Thorpe v. Memorial Sloan Kettering, et al, is whether medical records the doctors forwarded to the woman’s Florida physicians meet the statutory definition of “products, materials, or things processed, serviced, or manufactured.”

Justice John Couriel told Link he wasn’t convinced.

“Your brief was excellent, but I wouldn’t say it was ‘well-manufactured,’ right?’” he asked.

“Would I say my brief was well-manufactured?” Link said. “It was processed; it was definitely processed.”

Last year, the Sixth District Court of Appeal disagreed and upheld the trial judge’s dismissal.

The patient, Jennifer Palmer, had a tumor removed from her thigh at Memorial Sloan-Kettering when she lived in New York between 2012 and 2015, records show.

Palmer died in 2021 at age 34 after moving back to Orlando for further treatment, the records show. Her mother was added to the suit as a representative of Palmer’s estate.

The New York surgeon and a radiologist failed to detect the cancer that spread to Palmer’s bones and waited weeks after an MRI to schedule a follow-up visit, the plaintiffs alleged.

The Sixth DCA found, among other things, that the plaintiffs failed to establish a “temporal” connection to the New York treatment. Link reminded justices on Thursday that the temporal issue wasn’t raised by the trial judge.

The statute’s definition of a temporal connection, “at or about the time of injury,” is a broad phrase, Link said. She reminded the justices that it’s not possible to pin down the exact day a patient contracts cancer.

Medical “reports” don’t fit the long-arm statute definition, the Sixth DCA determined.

“While a report is certainly a ‘thing,’ the writing of a report does not constitute ‘processing,’ ‘servicing,’ or ‘manufacturing’ the report,” the opinion states. “The ordinary meaning of ‘processing,’ ‘servicing,’ or ‘manufacturing,’ a ‘thing’ does not include simply writing a written document.”

However, the Sixth DCA asked justices to resolve a conflict with a 2001 First DCA opinion, Dean v. Jones, that involved medical reports transmitted to Florida by an Alabama physician. The First DCA reached a different finding regarding the reports, but the Sixth DCA stressed that the facts of the two cases “are very different.”

Dean held that writing a report and sending it to Florida “is precisely what section 48.193(1)(a)6.b. contemplates,” Link stressed in her brief.

But on Thursday, Chief Justice Carlos Muñiz told Link he shared the other justices’ concerns.

“You don’t really say that authors ‘process’ their books,” he said.

“I did process my brief,” Link reiterated.

Muniz was skeptical.

“Would you go home and tell your family you ‘processed’ your brief?”

Muñiz and Justice Adam Tanenbaum said the wording in the long-arm statute appeared to be geared more toward “product liability.”

Gerard Collins, an Orlando attorney who represents the defendants, agreed.

“The statute connotes physical, tangible handling of products for manufacturing,” he said. “It does not involve an opinion or thoughts from a doctor.”