27th September, 2016 - Florida - USA: A patient left a Boynton Beach hospital with a 4¼-inch piece of tubing in his abdomen that was supposed to have been removed the day after his colon surgery.
In a subsequent medical malpractice trial, a Palm Beach Circuit Court jury found for the defendant, Bethesda Memorial Hospital. The Fourth District Court of Appeal affirmed.
Now the case is before the Florida Supreme Court, which will hear arguments Oct. 6. Lawyers for the hospital and for patient Simon Dockswell are debating whether Judge Meenu Sasser should have told the jury to presume negligence in this "foreign body" matter unless the defense proved otherwise.
The Fourth District seconded Sasser's ruling that the jury instruction was unnecessary. Both sides introduced direct evidence about whether the nurse who extracted only part of Dockswell's drainage tube met the standard of care, the court said.
"The use of the foreign body jury instruction would have improperly permitted the jury to disregard the conflicting testimony of the experts," Chief Judge Cory Ciklin wrote for a unanimous panel.
But when the same panel denied a motion for rehearing, one member dissented. Judge Burton Conner wrote that Dockswell and his wife shouldn't be penalized for presenting evidence that "the nurse did something wrong."
"Under the clear wording of the [medical malpractice] statute, if the Dockswells came into court and said, 'We don't know how or why the drainage tube broke off in Mr. Dockswell's body,'" they would be entitled to the requested jury instruction, Conner concluded. He would order a new trial.
Best Practices
Roy Wasson, a lawyer for a pro-petitioner amicus in the Dockswell case, said the bigger issue is that the Fourth District holding militates against plaintiffs making their strongest case. "The sign in the courtroom says, 'We who labor here seek only the truth,'" said Wasson, who represents the Florida Justice Association and has his own firm in Miami. "The idea that it could hurt a plaintiff's case to present direct evidence of negligence—that would almost encourage the withholding of evidence and make it harder for the jury to find the truth."
Wasson called the Fourth District's opinion "an anomaly. I don't know of any appellate decision that has held you couldn't use the foreign object instruction," he said.
Dockswell's appellate lawyer, Geoffrey Marks, wouldn't speculate about whether the instruction might have yielded a different result at trial. But he asserted that the judge's charge "was almost a salt-in-the-wound-type situation."
"The jury was instructed almost the exact opposite: They were told as a general matter medical negligence doesn't happen," said Marks of Billbrough & Marks in Coral Gables. "The defense can do no wrong."
His Supreme Court brief charts the 82-year history of Florida law singling out for special treatment cases involving foreign objects left in patients. Only in these malpractice claims does the burden of proof shift from the plaintiff, who almost always must prove negligence, to the defendant, to show the absence of negligence.
"The authorities are legion to the effect that it is negligence per se for a surgeon to leave a sponge in an abdominal incision made in his patient in the course of his performance of a surgical operation," the Florida Supreme Court held in Smith v. Zeagler in 1934.
Source: http://www.dailybusinessreview.com/home/id=1202768586324/Does-Nurse-Leaving-Tube-in-Patient-Equal-Negligence?mcode=1202617073880&curindex=3&slreturn=20160904043157