Dockswell v. Bethesda Mem'l Hosp., Inc.

• Decision Date: 26 January 2017
• Docket Number: No. SC15–2294,SC15–2294
• Citation: 210 So.3d 1201
• Parties: Simon DOCKSWELL, et al., Petitioners, v. BETHESDA MEMORIAL HOSPITAL, INC., etc., Respondent.
• Court: Florida Supreme Court

210 So.3d 1201

Simon DOCKSWELL, et al., Petitioners,

v.BETHESDA MEMORIAL HOSPITAL, INC., etc., Respondent.

No. SC15–2294

Supreme Court of Florida.

[January 26, 2017]

Geoffrey Bennett Marks of Billbrough & Marks, P.A., Coral Gables, Florida, for Petitioners

William T. Viergever of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A., West Palm Beach, Florida, for Respondent

Roy D. Wasson of Wasson & Associates, Chartered, Miami, Florida, for Amicus Curiae Florida Justice Association

PARIENTE, J.

The issue presented involves the interpretation of section 766.102(3)(b), Florida Statutes (2011) (the foreign-body presumption of negligence)—specifically 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.

The foreign-body presumption of negligence set forth in section 766.102(3)(b) provides:

[T]he 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.

(Emphasis added.)

In Dockswell v. Bethesda Memorial Hospital, Inc. , 177 So.3d 270 (Fla. 4th DCA 2015), the Fourth District determined that when direct evidence of negligence exists, the plaintiff is not entitled to the statutory presumption arising from section 766.102(3)(b). We have jurisdiction based on express and direct conflict with Kenyon v. Miller , 756 So.2d 133 (Fla. 3d DCA 2000). See art. V, § 3(b)(3), Fla. Const.

After analyzing the statute and relevant case law, we conclude, consistent with the analysis of Judge Conner's dissent in Dockswell , 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. Accordingly, for the reasons more fully explained below, we quash the decision of the Fourth District Court of Appeal.

BACKGROUND

On April 29, 2011, Simon Dockswell was admitted to Respondent's Bethesda Memorial Hospital for a "colon resection due to cancerous polyps." As part of the procedure, surgeon George Mueller, M.D., inserted a drainage tube into Mr. Dockswell's abdominal cavity "to evacuate the fluid postoperatively." Drainage tubes of this sort are usually removed after surgery at the direction of the physician.

In preparation for Simon Dockswell's discharge a few days after surgery, a nurse removed the drainage tube. Evidence identifies Nurse Porges as the nurse who removed the drainage tube. Mrs. Dockswell was present in Mr. Dockswell's hospital room while the nurse removed the drainage tube. Testimony revealed that it was questionable whether Dr. Mueller actually instructed that the drainage tube be removed. Nevertheless, during the drainage tube removal, "Mr. Dockswell experienced no immediate discomfort, but a 4.25–inch section of the tube was unknowingly left inside him." Dockswell , 177 So.3d at 271 (emphasis added). It is undisputed that the drainage tube was left inside Mr. Dockswell through no fault of his own.

Mr. Dockswell was discharged from Bethesda Memorial Hospital's facility on May 3, 2011. The Fourth District explained the subsequent facts as follows:

Approximately four months later, after Mr. Dockswell experienced continuing pain in the region, a CT scan

revealed that a portion of the drain remained in his body. A second surgery was performed to remove the remaining piece of the drain.

The Dockswells filed suit against the hospital alleging, among other claims, that 1) the tube was negligently removed with excessive speed and force, and 2) the nurse negligently failed to inspect the drainage tube to ensure that it was removed entirely, which resulted in the tube fragment being overlooked....

At the charge conference, the Dockswells sought a jury instruction establishing a presumption of negligence against the hospital because of the presence of the tube fragment.

Dockswell , 177 So.3d at 271.

At trial, the Dockswells requested Florida Standard Jury Instruction 402.4c, which states:

[Negligence is the failure to use reasonable care.] The presence of (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.

Bethesda Memorial Hospital opposed the Dockswells' request, arguing "that the presumption of negligence does not apply in instances where the plaintiff is aware of and has evidence of the culpable party." Dockswell , 177 So.3d at 271.

The parties also disputed whether Florida Standard Jury Instruction 402.4c ("Instruction 402.4c") applied to both of the Dockswells' theories of negligence—negligent removal and negligent inspection—or only to the theory of negligent inspection. See id. at 271–72. The Dockswells argued that Instruction 402.4c was equally applicable to both of their theories under the common claim of negligence, specifically that their action arose from medical malpractice. Bethesda Memorial Hospital argued "that the foreign body instruction is inapplicable to the first of the Dockswells' two claims ... since the instruction ... would be applicable only as to the nurse's alleged failure to inspect which then resulted in the tube being left behind for a later medical discovery." Id. at 271.

The trial court ultimately denied the Dockswells' request for Instruction 402.4c, reasoning that the Dockswells' ability to identify Nurse Porges as the person who removed the drainage tube rendered the Instruction inapplicable. Further, the trial court reasoned that "the word ‘discovery’ in section 766.102 [ (3)(b) ] (and thus the instruction) suggests a situation where a patient is uncertain as to where responsibility for negligence lies." Id. at 272. Because the trial court determined that the foreign-body presumption was inapplicable, over the Dockswells' objection, it used a nonstandard jury instruction, requested by Bethesda Memorial Hospital, which provided:

The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately cause[d] by a breach of the prevailing professional standard of care by the health care provider.

The verdict form instructed the jury to first determine whether "there was negligence on the part of BETHESDA MEMORIAL, INC. which was a legal cause of loss, injury or damage to SIMON DOCKSWELL." The jury answered this question in the negative. Because the jury answered this first question in the negative, it was instructed to proceed no further and sign the jury verdict form. Accordingly, the jury returned a verdict for Bethesda Memorial Hospital, and the trial court entered judgment consistent with the verdict. The trial court denied the Dockswells' Motion for New Trial and Supplemental Motion for New Trial after a hearing on the parties' arguments regarding the applicability of Instruction 402.4c.

The Dockswells appealed to the Fourth District, arguing that the discovery of the drainage tube fragment inside Mr. Dockswell entitled them to Instruction 402.4c, which would have created a presumption of negligence and shifted the burden to Bethesda Memorial Hospital to disprove liability. Dockswell , 177 So.3d at 274. The Fourth District rejected the Dockswells' argument, agreeing with the trial court that the foreign-body presumption in section 766.102(3)(b) and, thus, Instruction 402.4c were inapplicable.

The Fourth District first stated that "the statute is a codification of the doctrine of res ipsa loquitur in the medical negligence context." Id. at 272. The Fourth District then determined that "[t]here were no genuine doubts surrounding the identity of the allegedly culpable party or the events that led to the [drainage] tube being left inside of Mr. Dockswell by the time th[e] case went to trial" because (1) the Dockswells "were able to present direct evidence of negligence," (2) Mr. Dockswell was conscious while the nurse removed the drain, and (3) Mrs. Dockswell was present during the removal. Id. at 273. Thus, the Fourth District concluded that the foreign-body presumption of negligence and Instruction 402.4c "w[ere] not necessary to allow the jury to resolve the issues in the case." Id.

Judge Conner dissented, arguing that the majority improperly analyzed whether res ipsa loquitur applied, as opposed to the Dockswells' entitlement to the statutory foreign-body presumption. Id. at 274 (Conner, J., dissenting). He explained that there were legal distinctions between the foreign-body presumption and res ipsa loquitur that the majority ignored. Id. Because a foreign body was left in Mr. Dockswell, Judge Conner concluded that the Dockswells were, in fact, entitled to the benefit of the statutory presumption and that it was error for the trial court not to give Instruction 402.4c.

The Dockswells petitioned for review, and this Court accepted jurisdiction based on express and direct conflict between the Fourth District's decision in this case and the Third District's decision in Kenyon .

ANALYSIS

The issue in this case involves 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 prove that no medical negligence occurred.¹ 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.

We begin with an...