TALLAHASSEE — A Florida Supreme Court is scheduled to hear a case involving medical malpractice claims after a patient left the hospital following a colon operation with a piece of plastic tubing still in his body that a nurse left behind. 

A University of Florida Law School professor weighed in on some disagreement among the personal injury attorney circles and explained their gripes about the Fourth District's handling of the case. 

Simon Dockswell is the patient who left Bethesda Memorial Hospital in Boynton Beach with a piece of tubing measuring slightly more than four inches in size in his abdomen, according to reports. The object was supposed to have been removed the day after the surgery. Both Palm Beach Circuit Court and Fourth District Court of Appeals sided with the defendant, Bethesda Memorial Hospital. 

The Supreme Court arguments will reveal whether or not Judge Meenu Sasser appropriately instructed the jury to presume negligence in the foreign body issue unless the defense proved contrary. The Fourth District affirmed the instruction was not needed. Now the high court will make its decision on the foreign body matter. 

Attorneys have noted that the judge did not allow the plaintiffs to make a strong case. University of Florida Law Professor Lars Noah specializes in these particular areas of the law. 

"The objection is that the plaintiff would have gotten a rebuttable presumption of negligence had they made no effort to specify what the defendants had done wrong, but lose the benefit of that instruction because they tried to put on direct evidence of what had happened," Noah told the Florida Record. "Other states, in applying the so-called 'res ipsa loquitor' doctrine, will allow plaintiffs to invoke an inference or presumption of negligence from the happening of certain types of accidents while also trying to offer specific theories of what went wrong. The denial of the foreign object instruction in this case could appear to penalize the plaintiffs when they endeavor to specify the negligence act(s)."

Noah also detailed the significance of standard of care in the case. 

"Standard of care (to act as a reasonable medical professional under the circumstances) isn't at issue—instead, it's about proving an alleged deviation (and doing so directly versus circumstantially)," Noah said. "Courts in other states routinely view cases of things left behind in patients as circumstantial evidence of negligence, which forces the defendants to try and explain it--some of their excuses include a sudden emergency, like a cardiac arrest, required quick closure, or my favorite is that the patient was obese."

Chief Judge Cory Ciklin wrote in a unanimous panel that the use of the foreign body instruction would improperly permit the jury to disregard conflicting expert testimony at the trial. However, the same panel denied motion for rehearing to present evidence that the nurse did something wrong, according to reports. 

Noah offered his thoughts on the case and the opinions by the courts. 

"I take the court to mean that the failure to provide the instruction, in this case, made no difference--even if technically under state statute it was appropriate, the failure was harmless," Noah said. "Because the defendants made an effort to rebut the particular allegations of negligence, which they would also have done if instead there were no specific allegations but only a rebuttable presumption of negligence under the foreign body rule, the ultimate burden of persuasion would remain with the plaintiffs and the jury wasn't persuaded with their case. This might have made a difference if the defendants offered no response. Under a rebuttable presumption, the shifted burden of production going unmet would entitle the plaintiff to judgment as a matter of law, while otherwise, the jury could still come back with a verdict for defendants."

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