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Florida Supreme Court rules that statutory presumption regarding foreign bodies unintentionally left in surgical patients applies even where there is direct evidence of medical negligence

On January 26, 2017, in ​Dockswell v. Bethesda Memorial Hospital (No. SC15-2294), the Florida Supreme Court ruled that the statutory presumption regarding foreign bodies unintentionally left in surgical patients applies even where there is direct evidence of medical negligence. The relevant statute, Fla. Stat. Section 766.102(3)(b) provides: "[T]he discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider." In Dockswell, both the trial court and the 4th DCA ruled that evidence that a nurse had unknowingly left a portion of a drainage tube inside the plaintiff during a routine procedure to remove the tube made it improper to charge the trial jury under Section 766.102(3)(b). The Florida Supreme Court reversed the 4th DCA on this issue, concluding that the jury instruction was appropriate regardless of whatever other evidence existed with regard to the manner and means in which the tube fragment was left in the plaintiff's body.

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