The “Foreign Body” Instruction in Florida Medical Negligence Cases

In Dockswell v. Bethesda Memorial Hospital, Inc., a Florida appeals court recently held that a surgical patient who claimed a nurse negligently left a medical instrument in his body was not entitled to a jury instruction that the presence of a foreign object in a patient’s body creates a presumption of negligence against the defendant. The court went on to explain that such a jury instruction is reserved for instances in which the plaintiff is unaware of how the alleged injury took place or the identity of the responsible party.

In the case at hand, the plaintiff was admitted to the hospital for surgery, which encompassed placing a drainage tube in his body to get rid of post-operative fluid. The following day, a nurse came to remove the drainage tube. The patient and his wife observed the nurse as she removed the tube. Some time later, the patient realized that part of the tube was inadvertently left inside his body. The patient had experienced pain for months before a CAT scan showed that part of the tube was still inside him. He had to undergo a second surgery to remove the tube.

The plaintiff and his wife sued the hospital, alleging negligence. Specifically, the plaintiff claimed that the tube was removed with excessive speed and power, and that the nurse had carelessly failed to inspect the drainage tube to make sure it was properly removed.

The plaintiff requested a jury instruction based on a Florida statute allowing for a presumption of negligence as a result of the presence of the drainage tube inside the plaintiff’s body. That instruction states that the plaintiff generally bears the burden of proving a breach in the standard of care, but the discovery of a foreign body commonly used in surgeries constitutes prima facie evidence of negligence.

The hospital argued that the jury instruction was inapplicable because the plaintiffs were aware of the identity and had evidence of the responsible party. This is because both the plaintiff and his wife knew which nurse had removed the tube. Additionally, the hospital claimed that the instruction would be irrelevant to the claim that the nurse used excessive force to remove the tube.

The trial court denied the requested instructions, explaining that such an instruction only applies in situations in which a plaintiff does not know who the negligent party is. Here, the plaintiffs had the ability to provide direct evidence of the nurse’s negligence because the plaintiff was conscious at the time the drainage tube was removed. Florida courts have typically maintained that plaintiffs are only entitled to such an instruction if they establish that the injury took place while they were unconscious or under complete control of the healthcare professionals.

If you have been injured due to a medical professional, you may be able to seek compensation for your injuries. At the Law Offices of Robert Dixon, our skilled Miami medical malpractice attorneys have helped a number of clients resolve their claims. We know this is a stressful time, which is why you can expect the utmost compassion from our entire team. To find out about your options, contact us online or call us today at 1-877-499-HURT (4878).

More Blog Posts:

Negligence Claims against Pharmacies in Florida, South Florida Injury Lawyer Blawg, March 27, 2015

Common Examples of Negligent Driving in Florida Car Accident Cases, South Florida Injury Lawyer Blawg, March 27, 2015

Negligent Supervision of Children in Florida, South Florida Injury Lawyer Blawg, March 19, 2015


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