No Special Instruction For Patient With Object Left Inside of Him

One of the most frightening scenarios for patients who undergo a surgical procedure in a hospital is the possibility of having a foreign object left inside of them. A recent case discusses how and when the law protects those who fall victim to this kind of negligence.

Man Has Object Left Inside of Him

Recently, a man underwent a surgical procedure in a hospital, and a drain was inserted into him, a common procedure to allow drainage of excess fluids. A nurse eventually removed the drain. The man began experiencing intense pain for days afterward. What he didn’t know then, but eventually learned, was that a portion of the drainage tube had dislodged, and remained inside of his body.

The man sued the hospital. He was supported by Florida law, which provides that when an object is left someone, it’s assumed that there was negligence just by the mere fact that an object was left inside of them. This is known as the foreign body instruction. When a jury is given the instruction, a victim doesn’t have to prove negligence. It’s proven by having an object left inside of him. It’s on the defendant—in this case, the hospital—to demonstrate that there was no negligence.

He of course sought to have the jury instructed on that very law. But the hospital contended that the foreign body instruction wasn’t applicable where an injured party knows who the negligent party is. Rather, the hospital contended, the instruction is only for victims who have no idea who the negligent party is, for example, when someone wakes up from surgery and has an item in him. He may have no idea who put it there, who left it there, how it got there, etc. Here, of course, the man knew that if anyone was negligent, it was the nurse. Thus, the hospital argued, the foreign body instruction, which would presume its negligence, shouldn’t apply.

The trial court agreed with the hospital, refused to instruct the jury on the law, and a verdict against the victim and in favor of the hospital was entered. An appeal followed.

Court Limits When Instruction is Used

The appellate court, in reviewing the instruction, determined that it was intended for situations where generally someone is unconscious, and sustains an injury that’s not normally associated with, or which could ever be caused by, the medical procedure itself. An example would be waking up from surgery with a burn.

Conversely, poor medical results, and even negligence, are determined by a standard negligence inquiry, and do not require the foreign body instruction that the victim here was seeking. The same applies where a victim knows who the responsible, negligent party would be, and generally how the injury occurred.

Here, the victim knew that the nurse was negligent. The victim knew how the injury occurred—a piece of a tube being left inside of him. The victim was conscious, unlike if he was in surgery. The victim could, and did, make a direct negligence case against the hospital.

Thus, if anything, the appellate court felt that the case would have to be one of normal, medical malpractice, and that the victim could not get the foreign body jury instruction that he asked the trial court to apply.

Medical Malpractice can take different shapes and forms, and the law may apply differently to each. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your malpractice case to understand your rights if you are injured by a medical provider or facility.


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