In its opinion filed on January 26, 2017, the Supreme Court of Florida (“Florida Supreme Court”) held that the foreign-body presumption of negligence set forth in section 766.102(3)(b) is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence, and the presumption shifts the burden to the defendant to show that the foreign body was left inside the patient as a result of some factor other than his or her negligence.
The Foreign-Body Presumption
The foreign-body presumption of negligence set forth in section 766.102(3)(b) provides “[T]he discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.”
The Underlying Facts
On April 29, 2011, the plaintiff was admitted to the defendant hospital for a colon resection due to cancerous polyps. As part of the procedure, a drainage tube was inserted into the plaintiff’s abdominal cavity to evacuate the fluid postoperatively. These types of drainage tubes are usually removed after surgery at the direction of the physician.
In preparation for the plaintiff’s discharge from the hospital a few days after surgery, a nurse removed the drainage tube but a 4.25-inch section of the tube was unknowingly left inside the plaintiff. Approximately four months later, after the plaintiff experienced continuing pain in the region, a CT scan revealed that a portion of the drain remained in his body. A second surgery was performed to remove the remaining piece of the drain.
The plaintiff filed his Florida medical malpractice lawsuit in which he alleged, among other claims, that (1) the tube was negligently removed with excessive speed and force, and (2) the nurse negligently failed to inspect the drainage tube to ensure that it was removed entirely, which resulted in the tube fragment being overlooked.
The plaintiff sought a jury instruction establishing a presumption of negligence against the hospital because of the presence of the tube fragment (i.e., Florida Standard Jury Instruction 402.4c: “[Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent.”)
The defendant opposed the jury instruction, arguing that the presumption of negligence does not apply in instances where the plaintiff is aware of and has evidence of the culpable party. The trial judge denied the plaintiff’s request for Instruction 402.4c, reasoning that the plaintiff’s ability to identify the particular nurse who removed the drainage tube rendered Instruction 402.4c inapplicable. Furthermore, the trial judge reasoned that the word ‘discovery’ in section 766.102[(3)(b)] (and thus the instruction) suggests a situation where a patient is uncertain as to where responsibility for negligence lies.
Because the trial court determined that the foreign-body presumption was inapplicable, over the plaintiff’s objection, it used a nonstandard jury instruction requested by the defendant hospital that stated: “The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately cause[d] by a breach of the prevailing professional standard of care by the health care provider.”
The Florida medical malpractice jury answered in the negative the verdict form question whether “there was negligence on the part of [the defendant hospital] which was a legal cause of loss, injury or damage to [the plaintiff],” and the trial judge therefore entered judgment for the defendant hospital. The plaintiff appealed. The Fourth District affirmed. The Florida Supreme Court accepted jurisdiction based on express and direct conflict between the Fourth District’s decision in this case and the Third District’s decision in another case.
The Florida Supreme Court held that, unlike the common law doctrine of res ipsa where direct evidence of negligence may defeat its application, the only prerequisite to applying the foreign-body presumption and Instruction 402.4c is the “discovery of the presence of a foreign body” in the patient’s body. § 766.102(3)(b), Fla. Stat. (“Reviewing the statutory text, there is absolutely no indication that a litigant must prove, in addition to the presence of the foreign body, the absence of direct evidence of how the foreign body was left in the patient for the foreign-body presumption to apply . . . when a foreign body is found, or discovered, a presumption of negligence on the part of the health care provider is established. At that point, the burden lies with the health care provider to explain how the foreign body was left inside the patient as a result of some factor other than his or her negligence.”)
Res Ipsa Loquitor vs. Foreign-Body Presumption
The Florida Supreme Court stated that before res ipsa loquitur may be applied, the plaintiff must make requisite showings of the defendant’s control of the object and that negligence was the cause of the injury. Res ipsa loquitur is defeated only when the plaintiff’s evidence, on its own, establishes each element of negligence. This is logically sound because if the evidence is sufficient to present a prima facie case of negligence, the presumption of res ipsa is moot.
The Florida Supreme Court stated “[t]hus, we conclude that the comparison between foreign-body law— specifically section 766.102(3)(b) and Instruction 402.4c—and res ipsa begins and ends with their effect: imposing a prima facie case of negligence and shifting the burden to the defendant. As to the effect of the foreign-body presumption, specifically that “prima facie evidence” is established, we conclude that as interpreted above, the foreign-body presumption is a mandatory presumption, which ‘tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.'” A mandatory presumption may be either irrebuttable or rebuttable: the fact finder, however, is not free to reject the presumption. In other words, the foreign-body presumption is mandatory when applicable but rebuttable by the opponent.
The Florida Supreme Court stated that the jury should have been instructed to determine whether the defendant hospital sufficiently refuted the presumption of negligence, as provided by section 766.102(3)(b). Considering the trial court’s failure to properly place the burden on the defendant hospital to disprove negligence and the verdict at trial in the hospital’s favor, the Florida Supreme Court held that harmful error occurred and that the defendant hospital cannot establish that there is no reasonable possibility that the failure to give the jury instruction on the statutory foreign-body presumption of negligence contributed to the defense verdict. Furthermore, the nonstandard instruction given to the jury provides a separate basis for reversal because it misled the jury by instructing them on a negative and was potentially inconsistent with the standard jury instructions on negligence.
Therefore, the Florida Supreme Court remanded with instructions that a new trial be ordered in which the plaintiff receives the benefit of the foreign-body presumption of negligence in section 766.102(3)(b) as set forth in Florida Standard Jury Instruction 402.4c.
Source Dockswell v. Bethesda Memorial Hospital, Inc., No. SC15-2294.
If you may have been injured as a result of a foreign object left after a medical procedure in Florida or in another U.S. state, you should promptly consult with a Florida medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your foreign object medical malpractice claim for you and represent you in a foreign object medical malpractice lawsuit, if appropriate.
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