Hospital Malpractice in Florida
A hospital malpractice lawsuit captioned Dockswell v. Bethesda Mem’l Hosp., Inc., was recently decided by the Florida Supreme Court. In the Dockswell case, a patient was treated at Bethesda Memorial Hospital for the removal of cancerous polyps from his colon. The surgeon inserted a drainage tube as part of the procedure. A nurse removed the drainage tube. When the drainage tube was removed, part of the tube was left inside the patient. The patient was discharged from the hospital. Approximately four months later, the patient started to experience pain. A CT scan showed that a portion of the drainage tube remained in his body. A second surgery was performed to remove the remaining tube. The patient sued based upon medical malpractice and nursing malpractice.
Florida Statute Section 766.102(3)(b) states that the discovery of a foreign body, such as a clamp, sponge, surgical needle, forceps or other surgical equipment creates a presumption of negligence on the part of the healthcare provider. This presumption of negligence is mandatory when a foreign body is found in a patient’s body. Finding surgical paraphernalia in a patient’s body creates a presumption of negligence and shifts the burden of proof to the healthcare provider to show why they were not negligent. The only prerequisite to the application of the foreign-body presumption is the discovery of a foreign object in the patient’s body. Discovery means learning for the first time. When it is discovered that a foreign object improperly exists in a patient’s body, a presumption of negligence is established.
Once a foreign body is found in a patient’s body, the burden of proof shifts to the health care provider to explain how the foreign body was left inside of the patient as a result of some factor other than negligence.
In this type of medical malpractice case, the jury is instructed that negligence is the failure to use reasonable care. The presence of a foreign instrument in a patient’s body establishes that the healthcare provider has failed to use reasonable care unless the healthcare provider can prove that he or she was not negligent. In an ordinary medical negligence lawsuit, the burden is on the patient to prove that the healthcare provider was negligent. Upon discovery of a foreign instrument in a patient’s body, the burden of proof shifts to the healthcare provider to show that they were not negligent. The presence of a foreign body in a patient’s body establishes negligence unless the healthcare provider can prove by the greater weight of the evidence that he or she was not negligent.
To speak with a hospital malpractice attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.