Dockswell v. Bethesda Memorial Hospital, Inc.Annotate this Case
After undergoing surgery at Bethesda Memorial Hospital, it was discovered that a drainage tube had been left inside Plaintiff. Plaintiff and his wife filed suit against the hospital, alleging negligent removal and negligent inspection. The trial court denied Plaintiffs’ request for an instruction that would have created a presumption of negligence and shifted the burden to the hospital to disprove liability. The Fourth District Court of Appeal affirmed, concluding that when direct evidence of negligence exists, the plaintiff is not entitled to the statutory presumption arising from Fla. Stat. 766.102(3)(b). The Supreme Court quashed the decision of the Fourth District, holding 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.