        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

               SIMON DOCKSWELL and SANDRA DOCKSWELL,
                             Appellants,

                                     v.

    BETHESDA MEMORIAL HOSPITAL, INC., a Florida corporation,
                        Appellee.

                              No. 4D13-2936

                          [September 16, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Meenu      Sasser,     Judge;    L.T.    Case     No.
502012CA006331XXXXMB.

  Geoffrey B. Marks and Erin C. Hantman of Billbrough & Marks, P.A.,
Coral Gables, for appellants.

   William T. Viergever of Sonneborn Rutter Cooney & Smith P.A., West
Palm Beach, for appellee.

                      ON MOTION FOR REHEARING

CIKLIN, C.J.

   We deny the appellant’s motion for rehearing. Because of the inclusion
of a dissent to our denial of the motion for rehearing, we re-issue our
February 18, 2015 opinion with the addition of the dissent to allow the
appeal to be considered in full context.

    Simon and Sandra Dockswell challenge an adverse final judgment
entered upon the rendition of a jury verdict in favor of Bethesda Memorial
Hospital in a medical negligence action. The Dockswells allege that the
trial court erred by failing to give their requested instruction on retained
foreign bodies, which provided for a presumption of negligence against the
hospital. Finding no error, we affirm.

    Mr. Dockswell was admitted to the hospital for surgery. The procedure
included placement of a drainage tube to evacuate postoperative fluid. The
following day, a nurse came to Mr. Dockswell’s room to remove the
drainage tube. Mrs. Dockswell was present in the room and saw the nurse
pull the tube. Mr. Dockswell experienced no immediate discomfort, but a
4.25-inch section of the tube was unknowingly left inside him.
Approximately four months later, after Mr. Dockswell experienced
continuing pain in the region, a CT scan revealed that a portion of the
drain remained in his body. A second surgery was performed to remove
the remaining piece of the drain.

    The Dockswells filed suit against the hospital alleging, among other
claims, that 1) the tube was negligently removed with excessive speed and
force, and 2) the nurse negligently failed to inspect the drainage tube to
ensure that it was removed entirely, which resulted in the tube fragment
being overlooked. At trial, Mr. Dockswell testified that he was on pain
medication at the time that the nurse attempted to remove the tube, but
he had a general recollection of a nurse coming into his room and saying
the drain needed to be removed. His wife also testified to the nurse
removing the drain. The nurse could not specifically remember removing
Mr. Dockswell’s drainage tube, but she testified that she removes drainage
tubes on a frequent basis, always without difficulty. Each of the parties
presented an expert to opine on the nurse’s compliance with the standard
of care in removing the drainage tube or lack thereof.

   At the charge conference, the Dockswells sought a jury instruction
establishing a presumption of negligence against the hospital because of
the presence of the tube fragment. The proposed instruction was based
on Florida Standard Jury Instruction 402.4c:

   c. Foreign bodies:

   [Negligence is the failure to use reasonable care.] The presence
   of (name of foreign body) in (patient’s) body establishes negligence
   unless (defendant(s)) prove(s) by the greater weight of the
   evidence that [he] [she] [it] was not negligent.

(Emphasis in original). The instruction is derived from section 766.102(3),
Florida Statutes, which provides that a plaintiff generally maintains the
burden of proving a breach of the professional standard of care, but that
“the discovery of the presence of a foreign body . . . commonly used in
surgical, examination, or diagnostic procedures, shall be prima facie
evidence of negligence . . . .” See id. at n.1; § 766.102(3)(b), Fla. Stat.
(2011).

    The hospital asserted two main arguments in opposing the instruction:
1) that the presumption of negligence does not apply in instances where

                                    2
the plaintiff is aware of and has evidence of the culpable party, and 2) that
the foreign body instruction is inapplicable to the first of the Dockswells’
two claims (that the nurse negligently applied excessive speed and force)
since the instruction in question would be applicable only as to the nurse’s
alleged failure to inspect which then resulted in the tube being left behind
for a later medical discovery.

   Recognizing the distinction between the two claims, the trial court
sought a set of proposed instructions applying the foreign body instruction
to only the negligent inspection claim and not to the claim that alleged
excessive speed and force during the removal of the drain. Neither the
Dockswells nor the hospital submitted the instructions as requested by
the trial court.

   The trial court ultimately denied the requested instruction, explaining
that the Dockswells had the ability to present direct evidence of the nurse’s
negligence, whereas the word “discovery” in section 766.102 (and thus the
instruction) suggests a situation where a patient is uncertain as to where
responsibility for negligence lies. The jury returned a verdict for the
hospital.

   On appeal, the Dockswells argue that, because of the discovery of the
drainage tube fragment inside Mr. Dockswell, they were entitled to the
standard jury instruction on foreign bodies.

   “Failure to give a requested jury instruction constitutes reversible error
where: (1) the requested instruction accurately states the law, (2) the facts
in the case support the giving of the instruction, and (3) the instruction
was necessary to allow the jury to properly resolve the issues in the case.”
Florio v. Eng, 879 So. 2d 678, 680 (Fla. 4th DCA 2004) (citation omitted).

   The foreign body instruction is derived from section 766.102(3), which
provides in pertinent part:

   (b) The existence of a medical injury does not create any inference
   or presumption of negligence against a health care provider, and the
   claimant must maintain the burden of proving that an injury was
   proximately caused by a breach of the prevailing professional
   standard of care . . . . However, the 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
   diagnostic procedures, shall be prima facie evidence of negligence
   on the part of the health care provider.


                                     3
See Fla. Std. Jury Instr. (Civ.) 402.4c, n.1.

   Essentially, the statute is a codification of the doctrine of res ipsa
loquitur in the medical negligence context. See Borghese v. Bartley, 402
So. 2d 475, 477 (Fla. 1st DCA 1981).1 In Borghese, the plaintiff awoke
from surgery with an unexplained burn on a limb that was not involved in
the operation and brought suit. The trial court entered summary
judgment for the defendant because the plaintiff intended to rely
exclusively on a theory of res ipsa loquitur, which the defendant contended
could no longer be applied to actions against health care providers since
enactment of the applicable statute pertaining to medical negligence. The
First District Court of Appeal reversed and explained that the statute
disallows the inference of negligence only in circumstances where the
injury actually relates to the treatment sought:

    [T]he term medical injury . . . refers to an injury sustained as a direct
    result of medical treatment or diagnosis, and does not encompass
    injuries totally unrelated thereto. Thus, when a plaintiff establishes
    that the injury is outside the scope of medical treatment or
    diagnosis, and the facts and “circumstances attendant to the injury
    are such that, in light of past experience, negligence is the probable
    cause and the defendant is the probable actor,” the doctrine of res
    ipsa loquitur is applicable.

Id. (quoting Chenoweth v. Kemp, 396 So. 2d 1122, 1125 (Fla. 1981),
receded from on other grounds in Sheffield v. Superior Ins. Co., 800 So. 2d
197, 202-03 (Fla. 2001); Goodyear Tire & Rubber Co. v. Hughes Supply,
Inc., 358 So. 2d 1339, 1342 (Fla. 1978)). The Borghese court concluded
that the plaintiff could rely on res ipsa loquitur if she established that the
injury was unrelated to her surgical procedure, and that the injury
occurred while she was under complete control of providers and would not
normally occur without negligence. Id.

   Similarly, the Third District Court of Appeal has explained that the fact
of unconsciousness during surgery coupled with an unexplained injury is
insufficient to give rise to the application of the res ipsa loquitur doctrine,
but rather “it is the combination of an unconscious plaintiff with an
unexplained injury which is unrelated to the surgical procedure or
treatment which justifies the res ipsa inference.” Kenyon v. Miller, 756 So.
2d 133, 136 (Fla. 3d DCA 2000) (emphasis in original) (citations omitted).

1In Borghese, the court was interpreting section 768.45(4), which was eventually
renumbered as section 766.102(4), then as 766.102(3). See Ch. 88-1, § 78; Ch.
03-416, § 48, Laws of Fla.

                                       4
In Kenyon, the plaintiff’s cause of action related to mesh that was
purposefully implanted during surgery and was intended to remain as a
part of her treatment, but had to be removed following infection. The
appellate court held that negligence cannot be inferred from the fact that
treatment was unsuccessful or terminated with poor results. Id. The court
also found reversible error due to the fact that the res ipsa loquitur
instruction improperly permitted the jury to disregard conflicting expert
testimony on the standard of care presented at trial and infer that the
doctor was negligent solely based on the presence of the infected surgical
mesh. Id.

   Affirming a trial court’s declination to give a res ipsa loquitur jury
instruction, this court has likewise held that a plaintiff was not entitled to
the instruction where she “was not unconscious when her injury occurred,
there was no mystery as to how the injury occurred, and there was only
one possibly culpable defendant,” and thus, “she was able to adduce
sufficient direct evidence of negligence.” McDonald v. Med. Imaging Ctr. of
Boca Raton, 662 So. 2d 733, 735 (Fla. 4th DCA 1995). The court explained
that “the presence of some direct evidence of negligence should not deprive
the plaintiff of [a] res ipsa inference,” but “[t]here comes a point, however,
when a plaintiff can introduce enough direct evidence of negligence to
dispel the need for the inference.” Id. at 734 (quoting Marrero v. Goldsmith,
486 So. 2d 530, 532 (Fla. 1986)).

    In the matter at hand, the facts in evidence did not give rise to the use
of the foreign body jury instruction. Like the plaintiff in McDonald, the
Dockswells were able to present direct evidence of negligence. At the time
of the alleged negligence, Mr. Dockswell was medicated, but was not
unconscious, and his wife was in the hospital room. There were no
genuine doubts surrounding the identity of the allegedly culpable party or
the events that led to the tube being left inside of Mr. Dockswell by the
time this case went to trial.

   Moreover, a foreign body instruction was not necessary to allow the jury
to resolve the issues in the case. As in Kenyon, the Dockswells and the
hospital presented conflicting expert testimony on whether the nurse met
the standard of care or was negligent. The use of the foreign body jury
instruction would have improperly permitted the jury to disregard the
conflicting testimony of the experts. Where sufficient facts were known to
enable the parties to present conflicting expert testimony on reasonable
care, the issue of whether the nurse failed to meet the standard of care
and was negligent “should have been left to the jury based upon their
assessment of the credibility of the expert witnesses.” See Kenyon, 756
So. 2d at 136.

                                      5
   In light of the evidence presented, including the conflicting expert
testimony, the foreign body instruction was neither necessary to enable
the jury to resolve the issues in the case nor supported by the facts of the
case.

   Furthermore, the hospital argued below that, at best, the foreign body
instruction would only be appropriate for the Dockswells’ claim that the
nurse negligently failed to inspect the tube. Assuming, arguendo, that the
nurse was negligent, excessive speed and force in removing the tube
resulted only in the creation of the fragment. If the nurse immediately
inspected the tube and realized that a piece was missing, Mr. Dockswell
would still need surgery to remove it, and it would not be left behind for
“discovery” at a later date.

   Despite the trial court’s request, the parties did not submit proposed
instructions differentiating the claims, therefore we decline to address this
unpreserved issue of whether the foreign body instruction may have been
properly applied to the claim of negligent inspection, and yet not to the
claim of negligent removal. Cf. Feliciano v. Sch. Bd. of Palm Beach Cnty.,
776 So. 2d 306, 307-08 (Fla. 4th DCA 2000) (finding that issue was not
preserved for review where plaintiff objected to defendant’s proposed
instruction on pretext but failed to offer her own written instruction to
address the issue).

   We have considered the other issue raised on appeal and find no error.

   Affirmed.

FORST, J., concurs.
CONNER, J., dissents with opinion.

CONNER, J., dissenting.

   I respectfully dissent from the denial of the motion for rehearing, and
upon consideration of the motion, I now conclude I can no longer concur
with the majority opinion.

    First, neither side in this case has contended on appeal that the
doctrine of res ipsa loquitur applies to this case. Thus, the majority opinion
affirms the trial court on a legal analysis that was not argued by the parties
below or used by the trial court. Instead, the issue to be resolved by us
on appeal is how the first and last sentences of section 766.102(3)(b),
Florida Statutes (2011), apply to a set of facts.

                                      6
   The primary factual scenario that underlies the analysis in this case is
that a 4.25 inch drainage tube, placed during surgery for temporary post-
operative use, broke and remained inside of Mr. Dockswell’s abdomen
when the rest of the tube was removed by a nurse. In determining the
application of the first and last sentences of section 766.102(3)(b), it is
important to recognize the universe of explanations as to how or why the
drain tube broke: either (1) the surgeon did something wrong; (2) the nurse
did something wrong; or (3) the tube was latently defective before it was
placed inside the abdomen.

    In understanding the application of the first and last sentences of
section 766.102(3)(b), it is also important to recognize the overall structure
of legal concepts set forth by the legislature in adopting section 766.102.
Section 766.102 establishes the threshold requirements for filing a
medical negligence suit and the evidentiary standards for proving the
claim. Subsection (3)(b) provides:

      (b) The existence of a medical injury does not create any
      inference or presumption of negligence against a health care
      provider, and the claimant must maintain the burden of
      proving that an injury was proximately caused by a breach of
      the prevailing professional standard of care . . . . However,
      the 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
      diagnostic procedures, shall be prima facie evidence of
      negligence on the part of the health care provider.

§ 766.102(3)(b), Fla. Stat. (2011).

   The first sentence of section 766.102(3)(b) codifies the principle that a
medical injury does not create any inference or presumption of negligence
by a health care provider. Id. That principle recognizes there are inherent
risks in all medical procedures.2 Thus, the first sentence provides, in
essence, that a bad outcome (the condition was not successfully
remediated or a new problem was created) is not proof of negligence by the
medical provider. The last sentence of section 766.102(3)(b) provides an
exception to the general rule established by the first sentence.3 The last
sentence provides, in essence, that if a medical procedure has the

2 The most basic risk, among the many, is a misdiagnosis of the condition.
3The fact that the last sentence begins with “however” sets forth an exception to
the principles announced immediately before.

                                       7
unintended result of leaving a foreign body in the patient’s body after the
procedure is completed, that fact alone is prima facie evidence of negligence
on the part of the heath care provider.

    In recognizing that the legislature codified an important exception
relating to foreign bodies, our supreme court adopted Florida Standard
Jury Instruction (Civil) 402.4c, which the appellant requested. The
hospital opposed the instruction, arguing that because the Dockswells
were contending the nurse affirmatively did something wrong to break the
drainage tube, the instruction was not applicable. The hospital asserted,
and the trial court agreed, that standard instruction 402.4c was only
applicable to a theory of liability in which the claimant had no knowledge
or proof of how or why the drainage tube broke. The trial court agreed
with the hospital, after interpreting the word “discovery” as contemplating
a situation in which the claimant had no knowledge or proof of how or why
the drain broke. But if the legislature intended the statute to apply the
way the trial court construed it, the legislature could have simply said that
if an unintended foreign body remains after a medical procedure and the
claimant cannot prove why or how it happened, then the fact the foreign
body remained is prima facie evidence of negligence by the medical
provider.

    I contend the notion of “discovery,” as used by the legislature, simply
connotes that the foreign body remaining in the patient’s body was an
unintended consequence of the medical procedure. According to Webster’s
dictionary, “discovery” means “the act or process of discovering.” Merriam-
Webster’s Seventh New Collegiate Dictionary (1969). To “discover” means
“to obtain sight or knowledge of for the first time.” Id. According to
Webster’s, a synonym for “discover” is “unearth,” which “implies bringing
to light something forgotten or hidden.” Id.

   I agree with the Dockswells that the last sentence of section
766.102(3)(b) codifies and expands “the Zeagler Rule” espoused in our case
law during the 1930’s in Smith v. Zeagler, 157 So. 328 (Fla. 1934). In
Zeagler, our supreme court said that “[t]he burden of showing due care is
upon a surgeon who leaves a sponge inclosed [sic] in a wound after the
performance of an operation.” Id. at 329. The court went on to hold that
leaving a sponge inside the patient during the surgery process was
negligence per se. Id. (“The authorities are legion to the effect that it is
negligence per se for a surgeon to leave a sponge in an abdominal incision
made in his patient in the course of his performance of a surgical operation
upon such patient.”) (citations omitted).



                                     8
   Case law subsequently limited the application of Zeagler to surgeons
and not nurses or hospitals. In Beaches Hospital v. Lee, 384 So. 2d 234,
236 (Fla. 1st DCA 1980), the First District quoted the language in Zeagler
discussing “the burden of showing due care” and referred to the language
as “the Zeagler rule.” Immediately after the First District coined the phrase
“the Zeagler rule,” the First District inserted footnote 4 in the opinion and
stated:

      That rule [referring to “the Zeagler rule”] applied to the case
      here since the operation was performed in January, 1976. On
      July 1, 1976, Section 768.45(1), Florida Statutes (1977),
      [which subsequently became section 766.102(3)(b)] became
      effective, and provides unlike Zeagler that the discovery of the
      presence of a sponge is only prima facie evidence of the health
      care provider’s negligence. Health care providers are defined
      in Section 768.50(2) (b) as hospitals, physicians, osteopaths,
      etc.

Id. at 238 n.4. (emphasis added). After noting in the footnote that the new
statute did not apply to the case, the court went on to say:

      When a patient sues both a surgeon and a hospital or other
      health care provider for injuries resulting from the negligent
      abandonment of a sponge within an enclosed wound, we
      consider it would be inappropriate for a trial judge to grant a
      request for the Zeagler instruction since a jury could find that
      the hospital’s attendants were solely responsible for the
      patient’s injuries.    We think, then, the instruction is
      applicable only to an action between a patient and a surgeon,5
      and has no materiality when another health care provider is
      involved.

Id. at 237. Importantly, in footnote 5 of the opinion, the First District
stated:

      Assuming the action commenced before the effective date of
      Section 768.45(1), otherwise the statute’s provisions control.

Id. at 238 n.5. (emphasis added). Thus, the First District recognized,
shortly after the enactment of section 768.45(1) (the predecessor to section
766.102(3)(b)), that the statute established prima facie evidence of
negligence by a health care provider when an unintended foreign body
remains, and “the Zeagler rule” was no longer limited to surgeons.


                                     9
   I contend the last sentence of section 766.102(3)(b) is a recognition by
the legislature that the first sentence of the section places too onerous a
burden on the claimant to show a breach of the standard of care, when
the universe of explanations for why a foreign body remained includes
doctor error, nurse error, and product defect.4

    The Dockswells put forth two theories as to why Mr. Dockswell had to
undergo a delayed second surgery.5 The first and primary theory argued
was that the nurse breached the standard of care in removing the drainage
tube. The second and less argued theory was that the nurse breached the
standard of care by not noticing the drainage tube was four inches shorter
than it should have been after being removed. Under the clear wording of
the statute, if the Dockswells came into court and said, “We don’t know
how or why the drainage tube broke off in Mr. Dockswell’s body,” the
Dockswells would have been entitled to standard instruction 402.4c. I
find nothing in the wording of the statute that precludes the entitlement
to standard instruction 402.4c because the Dockswells said, “The nurse
did something wrong.” If a set of facts entitles one to a legal determination
that prima facie evidence of negligence is established, additional
affirmative evidence of negligence does not erase the prima facie
determination. The trial court’s view of the meaning of “discovery” as used
in the last sentence of section 766.102(3)(b) imports words into the statute
that are not there. Thus, I would reverse and remand for a new trial
because the trial court failed to give an instruction to which the Dockswells
were entitled.

                             *        *         *

    Not final until disposition of timely filed motion for rehearing.




4  If, by the adoption of section 766.102(3)(b), the legislature intended to
completely abolish the application of res ipsa loquitur in medical malpractice
cases, it makes sense that the legislature concluded it places too onerous a
burden on the claimant to show a breach of the standard of care when the
universe of explanations for why a foreign body remained includes doctor error,
nurse error, and product defect.
5 In seeking damages, the Dockswells argued that Mr. Dockswell would not have

endured four months of pain caused by the foreign body if the nurse had
promptly recognized that four inches of the drain remained in his abdomen.

                                      10
