LEGAL GUIDE
Written by attorney Jason Matthew Mayberry

Res Ipsa Surgical Mistakes

Recently, The Palm Beach Post released a column written by Susan Spencer-Wendel detailing Palm Beach County Judge Nelson Bailey's struggle with a medical malpractice claim wherein a surgical sponge was left within his abdomen, specifically near his intestines. According to the Post article, the sponge was repeatedly missed despite several CT scans and their misidentification of the metal sponge marker affixed to the sponge for easy identification. Though, pursuant to Florida Statute 766.102(3), there is no presumption of medical negligence against a health care provider based on injury alone, in situations like Judge Bailey's, where "a sponge, clamp, forceps, surgical needle, or other paraphernalia" is left within the patient there will be found prima facie evidence of negligence on the part of the health care provider. So what exactly does this presumption mean? In legal terms it's called "Res Ipsa Loquitor" or "the thing speaks for itself." This evidentiary rule "only requires the injured party to show that his injury was proximately caused by the negligence of the defendant before he was entitled to recover." Thomas D. Sawaya, FLORIDA PERSONAL INJURY AND LAW PRACTICE With Wrongful Death Actions ? 12.17. Florida Statute 766.102(3) was initially adopted via Florida Statute 768.45(3) and was later renumbered to its current coding. With the adoption of the language found in 766.102, the old negligence per se rule was formally rejected, thus making it easier for plaintiff's to prosecute suits of this type of medical negligence claim. Using the old negligence per se rule, a plaintiff only enjoyed the showing that by leaving an object in the body that there has been evidence of some kind of negligence occurring. Thomas D. Sawaya, FLORIDA PERSONAL INJURY AND LAW PRACTICE With Wrongful Death Actions ? 12.17. Thus, a plaintiff still had to show all elements of negligence under the old rule whereas now they must only show that the medical provider caused their injury. Id. Considering the difficulty of any medical malpractice claim, an advantage like Res Ipsa Loquitor could be the difference in making a recovery. If you've been the victim of medical negligence, contact a Medical Malpractice attorney.

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