Under section 766.102(3)(b) Florida Statutes (2011), any foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, is prima facie evidence of negligence by the medical health care provider. Typically, in any type of personal injury lawsuit, the injured person must show that the preponderance of the evidence shows the at-fault party is liable for the injury. In a recent case (No. SC15-2294), the Supreme Court looked at whether or not the burden of proof shifts to the defendant to show that medical negligence did not occur.
This lawsuit originated from the Fourth District Court of Appeal, which found that the burden did not automatically shift from the injured patient to the doctor. The plaintiff-appellant went to the hospital for a “colon resection due to cancerous polyps.” As part of the procedure, a drainage tube was inserted into the patient’s abdomen to remove any fluid built up after the operation. Typically, the drainage tube is removed. In this case, the nurse removed the drainage tube in preparation for the patient’s discharge. Testimony revealed that the doctor may not have instructed the nurse to remove the tube, but it was certain that the nurse performed the drainage removal procedure. Hospital notes showed that the patient did not experience any discomfort during the procedure, but a 4.25-inch section was accidentally left inside.
The patient was discharged but began experiencing continuing pain in the region four months after the surgery. A CT scan showed that the tube was still in his body, and a second surgery became necessary to remove the remaining piece. The patient filed suit, alleging negligence, and sought a jury instruction with the presumption of negligence under section 766.102(3)(b). The court denied the injured patient’s motion, which would have advised the jury of the shifted burden. Instead, the jury heard the standard instruction given, which states that the “existence of a medical injury does not create any inference or presumption of negligence against the healthcare provider” and kept the burden of proof on the injured person to show that the injury was proximately caused by the professional. The jury found for the defendants, and the injured person appealed both the trial verdict and the District Court’s ruling affirming the verdict.