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Simon Dockswell, et al. v. Bethesda Memorial Hospital, Inc., Case No. 4D13-2936 (4thDCA)

In Dockswell, the plaintiffs appealed an adverse final judgment entered in a medical malpractice suit. The plaintiffs argued that the trial court erred in refusing to give their requested jury instruction on foreign bodies, which would have provided for a presumption of negligence against the hospital. The plaintiff had been admitted to the hospital for surgery, which involved replacing a drainage tube. The day following surgery, the nurse came to the plaintiff’s room to remove the tube. The plaintiff’s wife was present in the room when the tube was removed, and say the nurse remove the tube. The plaintiff experienced no immediate discomfort, but a small portion of the tube was unknowingly left inside the plaintiff. A second surgery was performed to remove that section of the tube. The Fourth District additionally noted that at trial, the plaintiff testified that while he was medicated at the time, he had a general recollection of a nurse coming into his room and removing the tube. His wife testified as to the nurse who removed the tube.

At the charge conference, the plaintiffs sought a jury instruction establishing a presumption of negligence against the hospital because of the presence of the tube fragment, based upon Florida standard jury instruction 402.4c. The standard jury instruction is based upon Fla. Stat. 766.102(3), which provides that the plaintiff generally maintains the burden of proving a breach of the professional standard of care, but that “the discovery of the presence of a foreign body . . . commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence . . . .” The trial court denied the request, ruling that the plaintiffs had the ability to present direct evidence of the nurse’s negligence whereas the word “discovery” in Fla. Stat. 766.102 suggests a situation where a patient is uncertain as to where responsibility for negligence lies.

On appeal, the Fourth District reasoned that Fla. Stat. 766.102 was essentially “a codification of the doctrine of res ipsa loquitur in the medical negligence context.” The Fourth District then reviewed several appellate opinions applying the doctrine of res ipsa loquitur in the medical malpractice context, which generally applied res ipsa loquitur when the plaintiff was unconscious and suffered an unexplained injury that was unrelated to the surgical procedure or treatment. The court additionally discussed a prior Fourth District opinion where the court refused to give a res ipsa loquitur instruction where the plaintiff “was not unconscious when her injury occurred, there was no mystery as to how the injury occurred, and there was only one possibly culpable defendant,” and therefore, “she was able to adduce sufficient direct evidence of negligence.” The court ruled that in this case, there were sufficient facts so that the plaintiff could present direct evidence of negligence. The plaintiff was not unconscious and his wife was in the room at the time the tube was removed. There were no doubts about the identity of the allegedly culpable party or the events that led to the tube being left inside the plaintiff’s body. Therefore, the Fourth District ruled that the foreign body instruction was neither necessary nor supported by the facts.

Judge Conner dissented, and wrote a lengthy opinion arguing, in part, that neither party to the case argued for application of the doctrine of res ipsa loquitur. Therefore, Judge Conner stated that the majority opinion was based on an inapplicable legal analysis. He says that the issue to be resolved is simply an analysis of the first and last sentences of Fla. Stat. 766.102(3)(b). Judge Conner contended that “the last sentence of section 766.102(3)(b) is a recognition by the legislature that the first sentence of the section places too onerous a burden on the claimant to show a breach of the standard of care, when the universe of explanations for why a foreign body remained includes doctor error, nurse error, and product defect.”

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