Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc.
210 So. 3d 1201
| Fla. | 2017Background
- Simon Dockswell underwent colon resection; a drainage tube was removed by a nurse and a 4.25-inch fragment was later discovered inside him, requiring a second surgery.
- Plaintiffs (the Dockswells) sought Florida Standard Jury Instruction 402.4c invoking the statutory foreign-body presumption under §766.102(3)(b), which treats discovery of certain foreign bodies as prima facie evidence of negligence.
- Trial court refused Instruction 402.4c, concluding direct evidence and identification of the nurse who removed the drain made the presumption unnecessary; instead the court gave a nonstandard instruction stating plaintiffs retained the burden to prove negligence.
- Jury returned a defense verdict for the hospital; the Dockswells appealed. The Fourth DCA affirmed the trial court, treating the statute as akin to res ipsa loquitur and holding the presumption inapplicable when direct evidence existed.
- The Florida Supreme Court granted review, held that the foreign-body statutory presumption is mandatory (rebuttable by defendant) whenever a qualifying foreign body is discovered in a patient, and reversed and remanded for a new trial because the trial court’s refusal to give Instruction 402.4c (and its misleading nonstandard instruction) was harmful error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery of an unintended foreign body shifts burden to defendant under §766.102(3)(b) | Discovery of a foreign body (drain fragment) establishes prima facie negligence and requires Instruction 402.4c shifting burden to defendant | Presumption inapplicable where plaintiff has direct evidence identifying the actor and thus presumption is unnecessary | Court held the statute creates a mandatory (rebuttable) presumption upon discovery of a foreign body, regardless of direct evidence; Instruction 402.4c required |
| Whether statutory foreign-body presumption is equivalent to common-law res ipsa loquitur | Presumption is statutory and applies automatically on discovery; distinct from res ipsa | Argues foreign-body presumption is codification of res ipsa and should be defeated by direct evidence | Court held foreign-body presumption is distinct from res ipsa; res ipsa may be defeated by direct evidence, but the statute’s presumption is mandatory when its trigger is met |
| Whether trial court’s nonstandard instruction was proper | N/A (plaintiffs objected) | Nonstandard instruction emphasized plaintiff’s burden and negated presumption | Court held nonstandard instruction was misleading and compounded reversible error; harmlessness not shown |
| Whether prior cases (e.g., Kenyon) support limiting the presumption | Dockswells relied on Kenyon for scope (unintended foreign bodies) but argued Kenyon supports mandatory presumption when discovery occurs | Hospital relied on Fourth DCA Dockswell decision distinguishing Kenyon | Court approved Kenyon’s distinction (presumption applies only to unintended foreign bodies) and rejected the Fourth DCA’s contrary reading |
Key Cases Cited
- Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000) (distinguishes intentional implants from unintended foreign bodies and supports statutory presumption for the latter)
- Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978) (explains res ipsa loquitur elements and limited applicability)
- South Florida Hosp. Corp. v. McCrea, 118 So.2d 25 (Fla. 1960) (medical-malpractice res ipsa may coexist with direct-evidence claims; direct evidence does not always preclude res ipsa)
- Marrero v. Goldsmith, 486 So.2d 530 (Fla. 1986) (res ipsa may be given with some direct evidence, but overwhelming direct proof can negate it)
- Castillo v. Visual Health & Surgical Ctr., Inc., 972 So.2d 254 (Fla. 4th DCA 2008) (applies §766.102(3) and holds burden shifts to defendant to rebut presumption; defense must do more than speculate)