By Theodore Babbit
Published June

Florida Statute 766.102(3)(b) states:

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.


The Supreme Court of Florida in Dockswell v Bethesda Memorial Hospital, Inc.,  210 So. 3d 1201 (2017) was faced with an opinion in the Fourth District Court of Appeal in Dockswell  v. Bethesda Memorial Hospital, Inc., 177 So. 3d 270 (Fla. 4th DCA 2015) in which the Fourth District Court of Appeal held that when evidence of direct evidence exists the plaintiff is not entitled to the presumption of negligence in the above-quoted statute.

The case arose in Palm Beach County when a nurse attempted to remove a drainage tube from the plaintiff and it was later discovered that four and a quarter inches of the tube was inadvertently left in the plaintiff’s body.

After the foreign body was discovered, suit was filed alleging that the nurse who removed it was negligent in removing it too quickly and in the failure to measure it after removal in order to discover the missing section.

At the charge conference the plaintiff sought the giving of Florida Standard Jury Instruction 403.4c which provides:

[Negligence is the failure to use reasonable care.]

The presence (name of  foreign body) in (patient’s) body

establishes negligence unless (defendant(s))

prove(s) by the greater weight of the evidence that

[he] [she] [it] was not negligent.

The trial court found that the instruction was inapplicable, reasoning that because plaintiff was able to identify the person who left the foreign object inside the plaintiff’s body, the instruction was inapplicable.

The trial court also found that because the above statute uses the words  “the discovery” it implies a situation where the plaintiff is unable to identify who had committed the tort.

After a verdict for the defendant, the plaintiff appealed to the Fourth District Court of Appeal which affirmed the trial court’s finding that neither the statute nor the instruction applied.

The Fourth District Court of Appeal found that the statute was a codification of the doctrine of res ipsa loquitur which did not apply when direct evidence of negligence exists.

The Supreme Court reversed at Page 1205.  The Court held

The issue in this case involved the interpretation of the

foreign-body presumption, as codified in section

766.102(3)(b), specifically whether, in a medical

malpractice case involving a foreign body left in a

patient, the burden of proof shifts to the defendant

to provide that no medical negligence occurred.  We

conclude that, unlike the common law doctrine of

res ipsa where direct evidence of negligence may

defeat its application, the only prerequisite to applying

the foreign-body presumption and Instruction

402.4c is the “discovery of the presence of a foreign

body” in the patient’s body.  § 766.102(3)(b), Fla. Stat.


While the Fourth District relied upon an analogy to the doctrine of res ipsa loquitur requiring its exclusion when the existence of direct evidence is presented,  the Supreme Court in South Florida Hospital Corp. v. McCrea, 118 So. 2d 25 (Fla. 1960)  held that evidence of direct negligence does not preclude the application of the doctrine of res ipsa loquitur.

In Dockswell, supra, the Supreme Court finds that in any foreign body case, regardless of the existence or lack of existence of negligence, the statutory presumption exists.

Notwithstanding whether the trial court or Fourth

District were correct to conclude that direct evidence

of negligence existed, it is clear that the drainage

tube fragment was not intended to remain in Mr.

Dockswell and was, therefore, a foreign body within

the meaning of section 766.102(3)(b).  And the

injuries caused by its existence were not within

the scope of treatment.  See Kenyon, 756 So. 2d

at 136-37; Borghese, 402 So. 2d at 475.   Therefore,

as we explained above, the foreign-body presumption

and Instruction 402.4c were applicable to Dockswells’

case as a mandatory presumption, unavoidable by

evidence.  Thus, the jury should have been instructed

to determine whether Bethesda Memorial Hospital

sufficiently refuted the presumption of negligence,

as provided by section 766.102(3)(b).

This case clarifies the application of the foreign body presumption contained within Fla. Stat. 766.102(3)(b) and resolves any conflict  relative to its use and the use of the accompanying instruction 402.4c in all foreign body cases.





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