The “Foreign-Body Presumption of Negligence” is Alive and Well in Florida

At least one aspect of Florida law—and its interpretation by the state’s Supreme Court—is favorable to plaintiffs. This blog will discuss The “Foreign-Body Presumption of Negligence” is Alive and Well in Florida.

As our Delray Beach medical malpractice lawyers at Aronberg & Aronberg know, some features of the Florida State Statutes place truly burdensome limitations upon victims of medical malpractice. For instance, Florida State Statute 766.118(2)(a) mandates a cap of $500,00 upon the noneconomic damages which can be obtained by a victim of medical negligence. However, another part of the Statutes, 766.102(3)(b), provides that the presence of a “foreign body” within a patient shall be evidence of negligence on the part of the medical provider.

To be clear, subsection (3)(b) of the statute begins with language that protects potential medical practitioner defendants. Specifically, as our medical malpractice lawyers know, the subsection begins by stating (in more complicated language) that the fact that somebody has a medical injury does not create an inference that the health care provider was negligent. It also says that the injured claimant has the burden of showing that the injury was actually caused by a breach of protocol by the health care provider. But buried in that (3)(b) paragraph is the language helpful to victims and their families. Because the favorable language is important and relatively clear, it has been pasted below:

“However, the 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.”

So instead of carrying the initial burden, if a claimant has a foreign body instrument (such as the ones described in the statute) within their body, such a fact constitutes evidence of medical negligence by the health care provider. Then the burden shifts to the provider to prove that they were not negligent. As our Delray Beach medical malpractice lawyers know, this puts the burden on the defendant health care provider (doctor, hospital, etc.) to show that they were not negligent, as opposed to on the injured victim who has enough to worry about.

A recent case which made it all the way to the Florida Supreme Court affirmed the strength and power of Florida Statute 766.102(3)(b), which provides for the presumption of negligence given the presence of a foreign body. Dockswell v. Bethesda Memorial Hospital (Fla. 2017) involved a man who was admitted to Bethesda Memorial Hospital for surgery due to “colon resection due to cancerous polyps.” As a normal part of the surgery, the surgeon inserted a drainage tube into the patient’s abdomen to remove fluid. (The tubes are generally removed after surgery.)

While a nurse did attempt to remove the tube, it was undisputed that a 4.5-inch section of the tube remained in the patient’s abdomen. Four months later, after the patient experienced continuing pain in the abdominal region, he underwent a CT scan which revealed that a portion of the drainage tube remained in his body. He then underwent another surgery to have the piece of the tube removed.

Understandably, the patient (turned plaintiff) sued the hospital for negligence. The parties argued over the true meaning of the above-mentioned statute about the presumption of negligence given the presence of a foreign body, understanding that a drainage tube commonly used in that type of surgery qualifies under the statute as a covered instrument. As our Delray Beach medical malpractice lawyers understand, the Florida Supreme Court defined the issue before it as “whether, in a medical malpractice case involving a foreign body left inside a patient’s body, the burden of proof shifts to the defendant to prove that no medical negligence occurred.”

After reviewing the facts of the case and all of the relevant law, the Florida Supreme Court confirmed that “the foreign-body presumption of negligence set forth in section 766.102(3)(b) is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence” (emphases added).

As our Delray Beach medical malpractice lawyers understand, this statement by the Florida Supreme Court is critically important. Because it reaffirms that medical malpractice plaintiffs are relieved of the initial burden of proof given the presence of a foreign body, this ruling will likely lead to hospitals exercising higher standards of care, wary that should a “foreign body” be left behind in a patient, the hospital will face a difficult task in defending itself.

If you or someone you know has been injured due to the negligence of a medical professional, please contact our Delray Beach medical malpractice lawyers at Aronberg & Aronberg. To schedule a free consultation, please call us at 561-266-9191 or e-mail us at We look forward to assisting you.

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