Medical Malpractice Medical Malpractice Foreign Body Left in Patient

Medical Malpractice

In the case of Dockswell v. Bethesda Memorial Hospital, Inc., 177 So. 3d 270 (Fla. 4th DCA 2015), the patient sued the hospital because a piece of post-surgical drainage tubing broke off inside him and was not discovered for several months. The claimant alleged, in addition to failing to inspect the tube for broken pieces, that the tube was pulled out too abruptly. The result of the trial was that the jury found the hospital was not negligent and the plaintiff appealed.

How Does Florida Law Handle A Foreign Body Left Inside A Person After Surgery?

In Florida, standard civil jury instruction 402.4(e) is given to the jury and establishes a presumption of negligence when a foreign body is left inside a patient. The trial judge had declined to give this instruction in this case. The legal issue presented by this case was whether it was error for the trial court to decline to give the instruction in 402.4(e). As such, the instruction is based on section 766.102(3), Florida Statutes, which is only triggered when the patient is unable to present enough direct evidence of malpractice such as when the patient is unconscious and completely unaware that an injury may have occurred. In this particular case, the plaintiff and his wife were present and conscious when the drainage tube was removed by the nurse. The fact that the plaintiffs witnessed the procedure for which they were suing makes the instruction in 402.4(e) improper as the presumption is meant to “level the playing field” where the plaintiff is at a disadvantage due to unconsciousness.