In Florida, when one person causes injury to another, a personal injury lawsuit may arise. The burden is typically on is on the plaintiff to prove the elements of a cause of action, including the defendant’s negligence. However, less commonly, sometimes the plaintiff can shift the burden to the defendant to prove it was not negligent.
In the Supreme Court of Florida case, Dockswell v. Bethesda Memorial Hospital, Inc., the court referenced that under common law, this shifting of the burden is known as res ipsa loquitur, which means that the thing, such as the existence of negligence, speaks for itself. In that case, the issue of this burden-shifting arose in the medical setting. Florida has codified the doctrine of res ipsa loquitur when a foreign item inadvertently remains in a body following surgery, or a medical or diagnostic procedure.
Prima facie evidence of negligence
Essentially, it states that if a foreign body remains in the body after the procedure, it is a prima facie evidence of negligence. Foreign bodies may include such items as the following:
- Surgical needles
The burden switches
Once the foreign body fact is established, the burden becomes the defendant’s to disprove it was negligent. This doctrine, now codified in this kind of medical setting, allows the plaintiff the benefit of logical assumption of negligence by the defendant when direct evidence of what happened is lacking, but other factors exist that are consistent with negligence.
The item that stays in the body must have been within the exclusive control of the defendant, for this presumption to attach. It cannot be that someone other than the defendant had control over the item. The injury must also be one that typically would not occur without negligence by the party in control of the item.
The plaintiff does retain the burden, in the beginning, to first prove the circumstance surrounding the injury that would point to the fact that the defendant was the actor and negligence was the likely cause. Proof of injury, alone, is not sufficient to gain the presumption.
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