Dockswell v. Bethesda Memorial Hospital, Inc., ___ So. 3d ___, 40 Fla. L. Weekly D480 (Fla. 4th DCA February 18, 2015)
The day after surgery, a nurse failed to remove the entire drainage tube from the plaintiff’s incision. The error was discovered four months later and was corrected by a second surgery. The plaintiff contended that the nurse was negligent because of (1) the technique she used to remove the tube (too fast and forceful), and (2) failing to inspect the tube to confirm that it was removed completely. The jury returned a verdict for the hospital, but the plaintiff appealed based upon the trial court’s failure to give the retained foreign body instruction to the jury. Fla. Std. Jury Instr. (Civ.) 402.4c provides a rebuttable presumption of negligence based upon the presence of a foreign object in the patient’s body. The instruction implements Section 766.103(3), Florida Statutes, which provides that discovery of a surgical object in a patient’s body is prima facie evidence of negligence. In this case, the court held that the instruction was neither necessary nor supported by the facts because the plaintiff was conscious and his wife was present in his hospital room when the nurse removed the drainage tube. As a result, the plaintiff was capable of furnishing direct proof of negligence, and the instruction would have interfered with the ability of the jury to weigh the conflicting testimony of the parties’ expert witnesses. Furthermore, the instruction was irrelevant to the negligent inspection claim because a second surgery would have been necessary even if the failure to remove the entire tube had been discovered immediately. The court refused to consider whether the instruction would have been appropriate as to the negligent technique claim because the parties failed to comply with the trial court’s request to “submit proposed instructions differentiating the claims.” As a result, this issue was not preserved for appellate review.
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