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Florida Patients with Foreign Object in Body Always Entitled to Presumption of Negligence

operating roomAt the beginning of this year, the Florida Supreme Court ruled that a presumption of negligence is applicable in cases in which a foreign object is unintentionally left in a surgical patient, even if there is no direct evidence of medical negligence. Prior to this ruling, a federal appeals court had held that a plaintiff was not entitled to the presumption of negligence if no direct evidence of negligence existed.

In the case at hand, a man was admitted to the hospital for colon cancer surgery. After the surgery, it was discovered through a CT scan that a four-inch piece of a broken drainage tube had been left inside the patient’s body. The patient and his wife filed a medical malpractice lawsuit against the hospital.

A medical malpractice lawsuit is a civil claim that is intended to hold negligent medical professionals accountable for the harm that they cause to a patient. Such a claim makes sense when a medical professional fails to adhere to the acceptable standard of care. In Florida, a medical professional should use “the level of care, skill and treatment which is recognized as acceptable and appropriate by reasonably prudent, similar healthcare providers under similar circumstances.” In other words, a medical professional’s actions should be consistent with what a competent medical professional in the same specialty would have done in the same situation.

Both the trial court and the Fourth District Court of Appeal denied the plaintiff’s request for an instruction that would apply the presumption of negligence and shift the burden to the hospital to disprove liability, explaining that a plaintiff is not entitled to the presumption of negligence when no direct evidence of negligence exists.

The Florida Supreme Court reversed the lower court’s ruling, concluding that Section 766.102(3)(b) sets forth a mandatory presumption. The court explained that any time a foreign object is left inside a patient, the patient is entitled to favorable jury instructions, and the burden of proof shifts to the defense to prove that no medical malpractice took place. Here, the drainage tube was found after the patient underwent a CT scan. It was unclear how the tube broke, when it broke, and who was at fault for it breaking. As a result, the court stated that the jury should have been informed about the presumption of negligence to highlight that the hospital had the burden of rebutting the presumption.

When you seek medical attention, you expect to walk away feeling better, not worse. Unfortunately, this is not always the case. If you or someone close to you had a foreign object left inside the body after surgery, we can help. These claims are highly time-sensitive, so it is important to act quickly. At the Law Offices of Robert Dixon, our Miami medical malpractice attorneys understand this area of the law and are committed to helping clients seek the compensation they deserve for their harm. We proudly take on clients from throughout South Florida. For more information, call us at 1-877-499-HURT (4878) or contact us online today.

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