Florida Supreme Court Discusses Burden-Shifting Analysis in Medical Malpractice Cases Where Foreign Objects Are Left in a Patient’s Body

Earlier this month, the Florida Supreme Court issued a written opinion in a medical malpractice case that required the court to discuss the Florida state statute that explains how judges should handle cases alleging that the defendant medical professional left a foreign object in the plaintiff’s body. The case was interesting in that, unlike many cases of its type, the plaintiff knew exactly who had left the object in his body, as well as when it should have been removed.

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Section 766.102(3)(b) of the Florida Statutes states that when a foreign object is discovered in a plaintiff’s body after a surgery, that fact alone is prima facie evidence of negligence in a case against the most recent surgical care provider. The reason that this law – as well as other similar laws – was passed is because a patient waking up from surgery cannot identify who left the foreign object in their body in many instances because they were under anesthesia when the event occurred.

The Facts of the Case

The plaintiff had surgery at the defendant hospital. After the surgery, a nurse went to remove the drainage tubing that had been inserted into the plaintiff’s body. She pulled what she thought to be all the tubing out, and sent the plaintiff home. Four months later, the plaintiff began suffering pain in the area of where the tubing had been, and went back to the hospital. It was discovered that a four-inch section of tubing was still in his body. A second surgery was required to remove the tubing.

The plaintiff filed a medical malpractice lawsuit against the hospital, alleging medical negligence for failing to remove the entire section of tube prior to his initial discharge. To help prove his case, he attempted to take advantage of section 766.102(3)(b). However, the defendant claimed that the statute did not apply because the plaintiff knew who was responsible for the tube remaining in his body, as well as the circumstances surrounding the partial removal of the tube.

Two lower courts agreed with the defendant. It was not until the case was appealed to the Florida Supreme Court that the decisions were ultimately reversed. The Florida Supreme Court determined that nothing in the statute’s text limited its application to situations where a plaintiff was unaware about the identity of who had left the object in their body, and under what circumstances the failure to remove the object had occurred. As a result of the Supreme Court’s ruling, this plaintiff will have an opportunity to proceed toward trial or settlement negotiations.

Have You Been the Victim of Medical Malpractice in Florida?

If you or a loved one has recently been the victim of medical malpractice, you may be entitled to monetary compensation. However, even cases that seem cut-and-dry may present significant hurdles down the road. It is best that you are prepared for these situations before they arise. The skilled personal injury attorneys at the South Florida law firm of Frankl & Kominsky have extensive experience in personal injury, medical malpractice, and wrongful death cases, and understand what it takes to be successful on behalf of their clients. At Frankl & Kominsky, we never settle for less, and neither should you. Call 855-800-8000 to schedule your free consultation today.

See Additional Blog Posts:

Florida’s Second District Reverses in Hospital Sexual Assault Case, South Florida Injury Attorneys Blog, February 22, 2017.

Florida Supreme Court Finds Medical Malpractice Arbitration Agreement Unenforceable, South Florida Injury Attorneys Blog, January 18, 2017.