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Florida Supreme Court Holds Medical Malpractice Plaintiff Is Entitled to Favorable Jury Instruction Where Evidence Suggests a Foreign Object Was Left in the Plaintiff’s Body

Earlier this month, the Florida Supreme Court issued an opinion in a medical malpractice case in which the plaintiff claimed that the defendant negligently left a four-inch piece of drainage tube in his body after a surgery. The court ultimately held that the statute stating that a foreign body left inside a patient’s body is prima facie evidence of negligence should apply to the case, even though the plaintiff knew exactly who left the tube in him.

The Facts of the Case

The plaintiff was admitted into the defendant hospital for a colon resection surgery. During the surgery, several feet of drainage tube were inserted into his body to help his body eliminate fluids after the surgery. A few days after the surgery, a nurse came to remove the tubing before the plaintiff was discharged. She pulled the tube out, as is normal practice, and the plaintiff was sent home.

A few months later, the plaintiff noticed pain in the area of where the tubing had been, and it was discovered that there were approximately four inches of tube still in his body. A subsequent surgery was required to remove the tubing. The plaintiff then filed a medical malpractice lawsuit against the hospital where the original surgery and tube-removal took place.

The plaintiff hoped to use a state statute that created a presumption of negligence any time a foreign object was left in a patient’s body. However, the defendant objected on the basis that the statute was enacted to assist patients in proving a case of medical malpractice where, due to no fault of their own, they had no idea who had left the foreign object in their body. In many cases, this will likely be the case because a foreign object may be left in a patient’s body while he or she is still under anesthesia. However, here, the plaintiff knew that the nurse was responsible for removing the tube, and failed to ensure that the whole tube was removed. This, the defendant argued, made the presumption of negligence inapplicable.

The lower court agreed, and the jury ultimately found in favor of the defense. On initial appeal, the court agreed with the defense, as well. However, on the case’s final appeal to the Florida Supreme Court, the case was reversed. The court discussed the situation at length, holding that nothing in the statute limited it to situations where the plaintiff was unaware of who had left the object in his body or how it had been left there.

Have You Been Injured in an Act of Florida Medical Malpractice?

If you or a loved one has recently been the victim of a medical professional’s negligence, you may be entitled to monetary compensation. The skilled personal injury and wrongful death attorneys at the South Florida law firm of Cecere Santana have extensive experience handling all types of personal injury cases, including those arising from instances of medical malpractice. Call 800-753-5529 to schedule a free consultation with a dedicated personal injury attorney today.

More Blog Posts:

$9.3 million Verdict Awarded to Victim in Motorcycle Accident, Cecere Santana Injury Lawyers Blog, published March 9, 2017.

Failure to Follow Procedural Rules May Result in Delay or Dismissal of Florida Personal Injury Cases, Cecere Santana Injury Lawyers Blog, published March 2, 2017.