Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc.

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…