Professional Negligence Law Reporter

In May 2017, Ernest Hubler, a retiree and former smoker in his late 60s, went to otolaryngologist Ignacio Rodriguez, complaining of a sore throat and trouble swallowing. Hubler sought a second opinion after another otolaryngologist, Walter Fingerer, had diagnosed inflamed tonsils two months earlier. Rodriguez noted the presence of a hypopharyngeal mass and diagnosed spastic dysphonia, referring Hubler for a barium swallow test and speech therapy.

Two months later, Hubler returned to Rodriguez, who confirmed his diagnosis. Fingerer subsequently performed a tonsillectomy.

The mass continued to grow, and Hubler underwent a neck CT scan approximately 14 months after the tonsillectomy. This led to a biopsy and a diagnosis of stage IV squamous cell carcinoma. He underwent chemotherapy and surgery but died approximately three years later.

Hubler’s wife, on behalf of his estate, sued Rodriguez, Fingerer, and their practices, alleging failure to perform a timely biopsy. The defense argued that the mass was not cancerous in 2017 and that no biopsy was required at the time.

Fingerer and his practice settled before trial. The jury awarded over $5.1 million, apportioning liability at 65% to Fingerer and 35% to Rodriguez. The court denied the defense motion for new trial and remittitur.

Citation: Hubler v. Rodriguez, No. CACE19021921 (Fla. Cir. Ct. Broward Cnty. Aug. 15, 2024).

Plaintiff counsel: AAJ members Jordan A. Dulcie and Jack P. Hill, both of West Palm Beach, Fla.

Plaintiff experts: Andrew Bierhals, radiology, St. Louis; Andrew Doorey, cardiology, Durham, N.C.; Eroston Price, pathology, Dania, Fla.; Michael Armstrong, otolaryngology, Richmond, Va.; and Richard Hirschman, oncology, New York City.

Defense experts: Bert O’Malley, otolaryngology, Baltimore; and Jonathan Eisenstat, pathology, Decatur, Ga.