Florida Fourth District Examines Scope of Medical Malpractice Foreign Object Rule

photo_15716_200912061-300x225Negligence liability is fundamentally predicated on the expectation that people should exercise reasonable care in their actions when such actions have the potential to cause harm to another. Although the courts play the principal role in defining the scope of “negligence,” legislatures also actively participate in defining the scope of reasonable care. For instance, Florida law provides 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 . . . .” § 766.102(3)(b), Fla. Stat. (2011). Pursuant to this rule, courts will place the burden on a defendant in cases when a plaintiff has established that a foreign object was left in him or her. Given the shift in the burden, establishing the presence of a foreign body can have a meaningful impact on medical malpractice litigation, and litigants may battle about the rule’s applicability to the issues presented in their case. The dynamics of the rules application were recently addressed in a recent decision from the Fourth District Court of Appeal, Dockswell v. Bethesda Memorial Hospital, Inc.

The plaintiff in Dockswell had been admitted to the defendant hospital for surgery. The procedure included the placement of a drainage tube. A nurse came in the following day to remove the tube, and the plaintiff was conscious at this time. The plaintiff saw the nurse remove the tube and felt no immediate discomfort. However, a 4.25-inch section of the tube was inadvertently left in the plaintiff. Four months later, after the plaintiff complained of continued pain in the region where the section of tube was left, a CT scan revealed the presence of the tube, which was removed during a subsequent surgery. The plaintiff then filed the current medical negligence suit, and the parties presented conflicting expert testimony on whether the nurse complied with the applicable standard of care. During a charge conference prior to trial, the plaintiff sought the inclusion of a jury instruction based on the foreign object rule. The trial court denied the requested instruction, finding that the plaintiff had to present direct evidence of negligence because the foreign object rule is limited to situations when the plaintiff is uncertain about the person responsible for the negligence. The jury ultimately returned a verdict favorable to the defendant, and the plaintiff appealed, arguing that the trial court erred in denying his foreign object jury instruction.

The Fourth District Court of Appeal, however, affirmed the trial court’s ruling. Generally, a trial court’s denial of a jury instruction will constitute reversible error when “(1) the requested instruction accurately states the law, (2) the facts in the case support the giving of the instruction, and (3) the instruction was necessary to allow the jury to properly resolve the issues in the case.” Florio v. Eng, 879 So. 2d 678, 680 (Fla. 4th DCA 2004). The Fourth District started by noting that § 766.102 was the codification of a res ipsa loquitur presumption in medical negligence actions. Res ipsa loquitur has generally been limited to situations when a plaintiff is incapable of knowing the source of injury. In the medical malpractice context, this is generally found when a plaintiff is unconscious during a procedure and awakes to discover an inexplicable injury that could not have occurred but for the negligence of some party. Accordingly, a plaintiff will not be entitled to the jury instruction when he “was not unconscious when h[is] injury occurred, there was no mystery as to how the injury occurred, and there was only one possibly culpable defendant,” and thus “[]he was able to adduce sufficient direct evidence of negligence.” McDonald v. Med. Imaging Ctr. of Boca Raton, 662 So. 2d 733, 735 (Fla. 4th DCA 1995).

Turning to this case, the Fourth District noted the plaintiff was conscious at the time of the injury, and his wife was also present in the room when the injury occurred. Accordingly, the plaintiff would be able to produce direct evidence of negligence and therefore was not entitled to a jury instruction predicated on res ipsa loquitur principles. Indeed, the plaintiff did provide direct evidence of negligence that the jury considered. Thus, it could not be shown that the facts of the case supported providing the instruction to the jury. The plaintiff had two distinct claims, but the Fourth District noted that, although the instruction could’ve plausibly been related to one of the underlying claims, the plaintiff failed to preserve the issue by not providing alternative jury instructions to the trial court as the trial court had requested.

Although rules like the foreign object rule are designed to ease certain evidentiary burden for plaintiffs, proving medical negligence is always an involved undertaking. Indeed, medical negligence actions have many particular evidentiary and notice rules, and someone who has been injured in a possible case of medical negligence should consider finding counsel experienced in the nuances of medical malpractice. Frankl & Kominsky’s South Florida medical negligence attorneys have considerable experience litigating on behalf of South Floridian patients, and they are prepared to provide the zealous advocacy your case may require. If you believe you have a possible claim and would like to know more about your option, feel free to contact us for a free case consultation.

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