When medical malpractice makes news, it is usually for something pretty out of the ordinary. Even some of the most grievous examples of malpractice that result on the most severe injuries often do not make front page news, but the “stranger” events do. One area that often makes news when it comes to medical negligence is when an object is left inside a body during the course of surgery and the patient is closed them up with the foreign object still inside.
Florida’s Foreign Body Presumption Statute
Although most malpractice cases leave some room for debate as to whether the standard of medical care was followed or not, or whether another doctor with the same training in a similar situation would do or not do the same thing as the doctor being sued, it is pretty uniformly agreed that no doctor would leave a foreign object inside someone that was not supposed to be there.
For that reason, Florida law just eliminates the debate, specifically stating that when an object is left inside a body, that is presumed to be negligence, and the burden shifts to the defendant. That is, a plaintiff in such a situation need not present evidence of negligence; the jury will go into a case under the requirement that they legally assume the defendant was negligent, and it is up to the defendant to demonstrate otherwise (the level and extent of damages may still be up for debate).
Res Ipsa Loquitur
A recent case compares that statute to the common law doctrine of res ipsa loquitur. That is a legal doctrine that says that when something happens that could not happen in the absence of negligence, the Plaintiff is entitled to a presumption of liability.
For example, if a piano falls on your head while you are walking on the street, you may not know how it came to fall, but the only way a piano falls out of the sky is if someone is negligent. Thus, you would be entitled to presume that whoever controlled or owned that piano was negligent, even without knowing any facts about how it came to fall. That stuff just does not happen unless someone is negligent.
But res ipsa only applies if the plaintiff has no facts to prove negligence. That is, once a plaintiff can reasonably discover the facts leading to an accident, that presumption no longer applies. The plaintiff has to prove his or her negligence just like he or she would in an ordinary negligence case.
Does Res Ipsa Apply to Foreign Body Malpractice Cases?
A recent case involved a woman who underwent surgery and had a drainage tube inserted, a relatively common post-operative procedure. However, when the tube was removed, part of it remained inside of her. Four months later, after experiencing pain, it was discovered that part of the tube was still inside her. A second surgery was needed to remove the leftover parts.
The defendant argued that because the victim had direct evidence of negligence—she knew how the object was left inside her, she knew who allegedly did it, she could recite facts related to the accident—that Florida’s foreign body negligence presumption should not apply. She should have to prove her case just like any malpractice case. In that way, the defendant argued that the foreign body statute was just like the doctrine of res ipsa loquitur.
In analyzing the statute, the Court determined that the statute only required the discovery of the foreign body. It did not contain any specific exclusion of application where a plaintiff had direct evidence of negligence, like as exists in res ipsa loquitur cases. The court found that the legislature intended for patients who have foreign objects left inside of them to have the advantage of the presumption, and that intention is not overridden just because a plaintiff may have evidence of direct negligence.
This also makes sense because in malpractice cases, when objects are left inside of people, they often will not have the ability to determine how it happened; in many cases, they may be under anesthesia, and thus, only the surgeon would know how an object was left inside someone. This is true even though the patient may be aware who his or her doctor is, what procedure was performed, or have other evidence of direct negligence.
The decision clarifies that the foreign body presumption is applicable in a much broader context than standard res ipsa loquitur cases, and a patient does not have to know “nothing” about how an accident happened, in order to invoke the foreign body statute in a malpractice case.
Res Ipsa Still Exists
This is, of course, only as relates to foreign bodies. The doctrine of res ipsa loquitur still exists generally, and even against hospitals where someone is injured in a hospital by reasons other than malpractice. For example, res ipsa was still held to be applicable when a picture fell off a hospital wall and injured a visitor.
In that case, the court held that res ipsa could still be applicable, if the visitor could demonstrate that the picture was under the exclusive control of the hospital, and that it would not have fallen in the absence of negligence. This was up to a jury to decide, but as you can see, there are significant proof obstacles to a victim (proving an item was in exclusive control of the defendant and the accident would not have happened in the absence of negligence) in order to get the benefit of a res ipsa presumption, that now do not exist in a malpractice foreign body case.
If you or a loved one have been injured as a result of medical malpractice claims, there may be differing legal theories to assist you in recovery. Contact an attorney at Brill & Rinaldi for a free consultation about your medical malpractice case.