Plaintiffs with Foreign Object in Body Always Entitled to Presumption of Negligence, Florida Supreme Court Holds

The Florida Supreme Court recently determined that a plaintiff who undergoes a procedure and has a foreign object left in their body is always entitled to a presumption of negligence. Before this decision, a federal appeals court had decided that a plaintiff was not entitled to the presumption where direct evidence of negligence exists. The Florida Supreme Court’s decision changed in this most recent opinion, making it easier for Florida plaintiffs to recover.

Surgeon's ToolsFacts of the Case

In 2011, a man was admitted to a hospital for a surgical procedure. During the procedure, the surgeon inserted a drainage tube into his abdomen. These tubes are normally removed after surgery. The tube was removed a few days later, but a section of the tube was accidentally left inside his abdomen.

After the man began experiencing pain in his abdomen, a CT scan showed that the section of the tube was still in his body. The man then had a second surgery to have the tube removed.

The man sued the hospital, alleging medical malpractice. Before trial, he requested a jury instruction establishing a presumption of negligence under Florida law. But the hospital alleged the presumption does not apply where the plaintiff has evidence that a known party was negligent. The court did not instruct the jury on the presumption, and the jury returned a verdict in favor of the hospital, finding it was not negligent.

The Foreign-Body Presumption in Florida

Section 766.102(3)(b) of Florida Statutes details the foreign-body presumption of negligence. The presumption applies in a medical malpractice case where a foreign body has been left inside a patient’s body. In that case, presumption shifts the burden of proof from the plaintiff to the defendant to show that no medical negligence occurred. The statute provides examples of foreign bodies such as a sponge, surgical needle, or clamp, or other tools commonly used in medical procedures.

The Decision

The Florida Supreme Court held that in any case that a foreign body is discovered in a patient’s body, the presumption applies. It found that the foreign-body presumption is a mandatory presumption. In this case, the court explained that the tube section was discovered after the man had the CT scan. Even though the man could identify the person who removed the drainage tube, that evidence did not show how the drainage tube broke, when it broke, and who was responsible for it breaking. Thus, it was not clear why the section was left inside his body. Moreover, the presumption is mandatory. As a result, the court determined the jury should have been instructed on the presumption, to show that the hospital had the burden of rebutting the presumption. The court reversed the decision and ordered a new trial.

Contacting a Miami Medical Malpractice Attorney

If you or your loved one has been harmed in the course of receiving medical care, you may be entitled to monetary compensation. Proving a medical malpractice lawsuit requires extensive work and resources, often from a team of experienced attorneys, investigators, experts, and support staff. At Friedman, Rodman & Frank, P.A., our experienced Miami medical malpractice attorneys are dedicated to achieving the best results possible for our clients. Call our office today at 305-448-8585 or toll-free at 877-448-8585 or contact us online to arrange a free and confidential consultation.

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