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When pursuing a medical malpractice case in Florida, two important legal concepts can affect how you prove negligence: prima facie evidence and the doctrine of res ipsa loquitur. These doctrines can create a presumption of negligence under certain conditions, effectively shifting some of the burden of proof from the injured patient (plaintiff) to the doctor or hospital (defendant). Below we explain what prima facie means under Florida law, how res ipsa loquitur (Latin for “the thing speaks for itself”) works, when each doctrine applies, and their limitations. We also discuss how these rules interact with Florida’s medical malpractice pre suit requirements in Chapter 766 of the Florida Statutes. Our aim is to make these legal concepts clear and accessible for injured patients and their families.
What Does “Prima Facie” Mean in a Florida Medical Malpractice Case?
Prima facie (pronounced “pry muh fay shuh”) is a Latin term meaning “at first sight” or “on its face.” In law, calling something “prima facie” means the evidence is sufficient to establish a fact or raise a presumption unless it’s disproved or rebutted. In a medical malpractice context, a prima facie case means the patient has presented enough evidence on the basic elements of negligence (duty, breach, causation, and damages) that the case can move forward. Essentially, the patient’s evidence “at first look” is strong enough that negligence is presumed, unless the health care provider can produce contrary evidence.
Florida law even provides a specific example of prima facie evidence of negligence in medical malpractice. If a surgeon or medical staff leaves a foreign object inside a patient’s body, it is prima facie evidence of negligence by the health care provider. Florida Statutes § 766.102(3)(b) states that “the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia… shall be prima facie evidence of negligence on the part of the health care provider.” In simpler terms, if a surgical tool or material is unintentionally left inside a patient, Florida law automatically treats that as negligence.
How does this help the patient? It creates a presumption of negligence. In the foreign object scenario, negligence is essentially assumed and the burden of proof shifts to the defendant the doctor or hospital must then prove that they were not negligent. For example, if an X ray after surgery shows a sponge was left in the patient’s abdomen, the law presumes the surgical team was negligent. The hospital would have to come forward with evidence showing it used proper care or explain how the sponge could have been left without negligence (a difficult task). Florida’s standard jury instructions reflect this; jurors are told that “The presence of [a foreign object] in the patient’s body establishes negligence unless the defendant proves by the greater weight of the evidence that [he/she/it] was not negligent.”
Important: Prima facie evidence of negligence is a rebuttable presumption. The health care provider gets a chance to rebut (disprove) the presumption by showing they exercised appropriate care. But if they cannot, the presumption stands. In our example, unless the surgeon can prove that leaving the sponge was somehow not a breach of the standard of care, the jury can conclude negligence occurred.
Also note that prima facie evidence only addresses the negligence itself (the breach of duty). The patient still must prove that the negligence caused harm. Even in a foreign object case, the injured patient needs to link the negligence to an injury or damages. Typically this is straightforward (e.g. a retained sponge can cause infection or require an additional surgery, which are clear injuries). But if a foreign object caused no injury, there may be negligence without compensable damages. Florida’s statute explicitly warns that the mere fact that a medical injury occurred does not automatically mean there was negligence. The patient always has the burden to prove that the provider’s negligence was a proximate cause of the injury. In summary, prima facie evidence (like a surgical tool left behind) gives the patient a head start by presuming negligence, but the patient must still prove the error resulted in harm.
The Doctrine of Res Ipsa Loquitur in Florida Medical Negligence
Res ipsa loquitur (“rez ip suh loh quit er”) is a legal doctrine that literally means “the thing speaks for itself.” Under this doctrine, a jury is allowed to infer negligence from the very nature of an accident or injury, even without direct evidence of a specific negligent act. In Florida, res ipsa loquitur is considered a rule of evidence that permits (but does not compel) an inference of negligence when certain conditions are met. It essentially applies in rare situations where the circumstances of the injury are so obviously abnormal that one can assume someone was likely careless.
For res ipsa loquitur to apply in a Florida medical malpractice case, the injured patient (plaintiff) generally must show three things:
- The type of incident usually signals negligence: The harm is of a kind that does not ordinarily occur in the absence of negligence. In other words, based on common experience or expert testimony, this injury is not a normal complication unless someone was careless. If an accident is one that normally never happens without a failure of due care, this condition is met. (For example, healthy patients under anesthesia don’t just wake up with unexplained injuries absent negligence.)
- Exclusive control by the defendant: The instrumentality or agency that caused the injury was under the exclusive control of the defendant at the relevant time. This means the patient did not control or contribute to the cause of harm it was in the hands of the medical provider. In a hospital setting, “exclusive control” can sometimes be flexible, especially if multiple providers had successive control. The key is that the negligent cause was something within the defendant’s responsibility.
- No fault of the patient: The injury was not due to anything the patient did. The patient did not contribute to the harm through their own actions. (This is usually straightforward in medical cases, especially if the patient was sedated or incapacitated when the injury occurred.)
If these conditions are satisfied, Florida law allows the jury to infer that the defendant was negligent based on the circumstances, even without direct proof of a specific act of negligence. In essence, res ipsa loquitur creates a circumstantial evidence argument: “In light of what happened, it speaks for itself that negligence occurred.”
Example: Imagine a patient undergoes a routine surgery and is under general anesthesia (completely unconscious). After waking up, the patient discovers a serious burn on their leg that was not there before surgery. The patient had no control over their body during the operation. Operating room fires or burns do not happen if proper care is taken with equipment, so such an injury “speaks for itself” as a sign of negligence. The surgical team had exclusive control of the patient and all equipment. In this scenario, a Florida court could allow res ipsa loquitur: the jury may infer that someone on the medical team was negligent in positioning or protecting the patient, even if the patient can’t pinpoint which specific action caused the burn. It would then be up to the defendants to offer evidence rebutting that inference (for instance, showing that all equipment was in proper working order and no mistake was made, which might be hard to do).
Florida courts have recognized res ipsa loquitur in such “unexplained injury” cases, especially when the patient was unconscious or otherwise unable to know what went wrong. Notably, the Florida Supreme Court has allowed an injured patient to use res ipsa loquitur even when multiple health care providers were involved, if fairness dictates it. In one case, a patient was under anesthesia for a procedure and woke up with a nerve injury in her arm an area far from the surgical site that should not have been harmed at all. She could not identify which of the several doctors or nurses caused the injury (because she was unconscious). The Court ruled that under those particular circumstances, the patient could go to the jury with a res ipsa loquitur instruction. In other words, all the involved providers had to explain how the injury could have occurred without negligence, since the injury itself strongly suggested a lapse in care. This was essentially an application of res ipsa to force an “initial explanation” from the defendants when the patient could offer no direct evidence. (This scenario mirrors a famous case called Ybarra v. Spangard, often cited when an unconscious patient is injured by something that “speaks of” negligence. Florida has embraced that reasoning in the appropriate context.)
It’s important to understand that res ipsa loquitur does not automatically prove the case it merely permits an inference of negligence. The jury may conclude negligence from the facts, but they are not required to. The defendant can rebut the inference by providing evidence of due care or an alternative explanation for the injury. If the jury believes the defendant’s explanation, they might decide no negligence occurred. However, if the defendant offers no convincing explanation, the res ipsa inference can carry the day for the plaintiff. In practical effect, res ipsa often shifts the burden of producing evidence to the defendant. The plaintiff is saying, “I don’t have direct proof of what you did wrong, but this kind of accident doesn’t happen without negligence.” The defendant then must counter that by showing they were not negligent or else risk the jury finding them liable. This is a softer shift than a statutory presumption legally the burden of proof (persuading the jury) stays with the patient, but the burden of coming forward with evidence shifts to the provider once the inference is raised.
Florida’s limitations on res ipsa: Florida courts emphasize that res ipsa loquitur applies only in exceptional or “rare” instances. Not every bad medical outcome qualifies. In fact, the Florida Supreme Court has cautioned: “An injury standing alone… ordinarily does not indicate negligence.” For res ipsa to be available, the injury must be of a type that almost certainly signals negligence when all known facts are considered. Many medical complications can occur without anyone being negligent those would not meet the threshold. For example, a known complication from surgery (even if rare) is generally not res ipsa, because it’s understood that it can happen absent negligence. There must be a sufficient showing that “but for” someone’s failure to use reasonable care, the injury would not have happened. Often, expert testimony is used to establish this in medical cases (e.g. an expert might testify “this kind of injury does not occur if the procedure is done correctly”). If the plaintiff’s evidence convinces the judge that reasonable jurors could infer negligence, the res ipsa instruction can be given. Otherwise, the court will not allow it.
In summary, res ipsa loquitur in Florida medical malpractice is a tool to help patients get to the jury when direct evidence of a provider’s specific negligence is absent. It allows jurors to use their common sense and conclude negligence from the mere occurrence of the event, provided the scenario meets the strict requirements. Both the prima facie foreign object rule and res ipsa loquitur shift the focus onto the defendant to explain what happened. The key difference is that the foreign object presumption (being in a statute) is mandatory and specific once a foreign object is found in the patient, negligence is presumed by law regardless of any direct evidence. Res ipsa, on the other hand, is a common law doctrine that is broader but discretionary it only applies when direct proof is truly lacking and the circumstances strongly suggest negligence. Also, direct evidence of negligence can sometimes “override” res ipsa (if you already have clear proof of a specific mistake, you don’t need to rely on an inference). In contrast, with a foreign object, Florida law says the presumption applies even if there is some direct evidence or even if you know exactly who was at fault. In practice, however, these concepts often work in harmony: the foreign object scenario is essentially a built in res ipsa case that Florida codified into a statute to ensure patients benefit from it.
Limitations of These Doctrines (Especially Regarding Causation)
While prima facie presumptions and res ipsa inferences are powerful for proving negligence, they do have important limitations. Understanding these limits is crucial:
They address negligence, not injury causation: Both doctrines help establish that the health care provider was negligent, but the patient still must prove that this negligence caused the injury. For example, proving that a doctor left a sponge inside you (negligence) is not enough by itself you must also show that the retained sponge caused harm (such as an infection, pain, or need for additional surgery). The presumption or inference doesn’t automatically attach dollar damages to the case; you must link the negligence to your damages. Florida law makes clear that a bad outcome alone isn’t proof of negligence, and by extension, even presumed negligence must be tied to the outcome. If there’s a gap in causation, the case can still fail.
Rebuttable and not conclusive: Any presumption or inference of negligence in these cases is rebuttable. “Rebuttable” means the defendant can present evidence to challenge it. For instance, under the foreign body presumption, a doctor might argue that a surgical instrument broke in an unforeseeable way (a piece snapped off despite proper usage) essentially trying to show an absence of negligence. Under res ipsa, the defense might bring in expert testimony that the injury could occur even with appropriate care (thus it wasn’t necessarily negligence). If the jury finds the rebuttal convincing or finds another cause for the injury, the presumption/inference can be overcome. These doctrines do not guarantee the plaintiff will win; they simply tilt the scales by forcing an explanation from the defense.
Not every medical injury qualifies: As noted, res ipsa is only available in unusual cases where negligence is the most likely explanation for the injury. Many medical malpractice claims require direct evidence and expert testimony, not just an inference. Courts will not apply res ipsa loquitur if the cause of injury is speculative or could occur without negligence. Similarly, the prima facie statutory presumption is limited to foreign objects left in patients’ bodies. Other kinds of obvious errors (wrong site surgery, for example) are certainly negligent, but they aren’t explicitly covered by a statutory presumption in Florida. (Wrong site surgery would, however, be so clearly below the standard of care that proving negligence in such a case is straightforward with direct evidence; an inference is hardly needed.)
The patient’s own conduct matters: If evidence shows that the patient’s actions contributed to the injury, res ipsa loquitur likely won’t apply. The doctrine requires that the cause of harm be in the defendant’s control and not due to the plaintiff. For example, if a patient didn’t follow post op care instructions and that led to a complication, you can’t use res ipsa to claim the complication itself “speaks for” provider negligence. (Contributory fault by the patient would be handled under comparative negligence rules, not res ipsa.)
Multiple Defendants and Exclusive Control: Traditionally, res ipsa required a single defendant with clear exclusive control. In modern practice (and especially in complex medical cases), courts have relaxed this in some situations (like the unconscious patient case) to avoid unfairly denying a remedy. However, when multiple defendants are involved, it can complicate the application of res ipsa. The plaintiff might have to show that each defendant had control of an instrumentality that could have caused the injury. Florida courts will consider the “exclusive control” element in context for example, in a surgery with a team, all members who had responsibility over the area of injury may be considered jointly in control for res ipsa purposes. But if the injury could have happened from something outside the defendants’ control, res ipsa is not appropriate.
In essence, these doctrines are aids to proof, not complete substitutes for evidence. They operate within the framework of proving a negligence case; they don’t eliminate the other requirements. Florida still requires proof of the standard of care, a breach of that standard, and that the breach caused the damages. Prima facie evidence and res ipsa loquitur mainly help with the breach element (negligence) by allowing or forcing a presumption of breach. The patient must still establish damages and link them to that breach. And even on the breach element, these are presumptions that the defense can counter, not absolute determinations.
Interaction with Florida’s Pre Suit Malpractice Requirements (Chapter 766)
Florida has a stringent medical malpractice pre suit process governed by Chapter 766, Florida Statutes. Before a malpractice lawsuit can even be filed in court, the law requires the claimant (patient) to complete certain steps intended to screen out frivolous cases. Two key steps are:
Pre suit Investigation: The patient (through their attorney) must conduct an investigation and have grounds to believe that medical negligence occurred and caused injury. Essentially, you can’t just assume malpractice you need some factual basis after inquiry.
Expert Corroboration: Florida law requires a medical expert’s opinion to back up the claim before filing. The patient must submit a verified written medical expert opinion corroborating that reasonable grounds exist to support a negligence claim. In other words, a qualified doctor must review the case and sign an affidavit or statement that the patient’s injury may have resulted from a breach of the standard of care. This expert opinion is sent with the Notice of Intent to Sue that kicks off the pre suit process.
Even if your case seems obviously negligent (say a sponge was left inside you), you are not excused from these pre suit requirements in Florida. The statutes apply to “all medical negligence claims”, which includes cases built on res ipsa loquitur or prima facie presumptions. Florida does not currently provide a blanket “common knowledge” exception that waives the expert affidavit in obvious negligence cases. So, for a foreign object case, you would still obtain an expert’s statement though practically it’s not hard to find an expert who will affirm that leaving a sponge or instrument inside a patient is negligent. This step is essentially a formality to satisfy the statute, even if the negligence appears undeniable. Failing to comply with the pre suit process (including the expert opinion requirement) can result in dismissal of your case, so it’s critical to follow those rules.
How do these doctrines play into pre suit? During the pre suit investigation, the expert will review the facts and likely note if res ipsa loquitur applies or if there is prima facie evidence of negligence. For example, if you have a retained instrument case, the expert’s opinion can simply state that a foreign object was found post surgery, which by statute is prima facie evidence of negligence. This easily “corroborates” the reasonable grounds to sue, satisfying §766.203‘s requirement. In a res ipsa scenario (say the patient woke with an unexplained injury), an expert can bolster the case by explaining that such an injury does not ordinarily occur without negligence effectively supporting the res ipsa inference. The bottom line is that you must go through the pre suit steps regardless of the doctrine you plan to invoke. The presuit process doesn’t eliminate or conflict with prima facie evidence or res ipsa; instead, those doctrines come into play later, usually at the stage of jury instructions or summary judgment arguments.
It’s worth noting that the foreign object prima facie rule is itself part of Florida’s statutory law (in Chapter 766) and reflects legislative acknowledgement of res ipsa type situations. By embedding that presumption in the statute, Florida made it clear that such cases are valid but it did not say they get to skip pre suit. So even in a “speaks for itself” case, you still notify the providers, get your expert affidavit, and engage in the 90 day pre suit negotiation period as required by law. If the case doesn’t settle in pre suit, you may then file the lawsuit, and at trial the presumption or inference can be used to help prove your case.
Practical Takeaway
Florida’s prima facie negligence rule and res ipsa loquitur doctrine can significantly help an injured patient prove a malpractice claim once you are in litigation, but they do not bypass the pre suit hurdles. Think of pre suit as a gatekeeping function you must show a qualified doctor agrees you have grounds to claim negligence. After clearing that, prima facie evidence (like a retained sponge) or res ipsa loquitur (an unexplained injury that implies negligence) become powerful tools to persuade the jury.
They shift the focus onto the defendant to explain how the injury happened. For injured patients and families, these doctrines provide a measure of fairness: they recognize that sometimes the hospital or doctor is in a much better position to know what went wrong, so the law, in those instances, puts the onus on the provider to prove they did no wrong. Just remember that you will still need to demonstrate how the negligence hurt you and follow all procedural requirements. With solid legal guidance, doctrines like prima facie evidence and res ipsa loquitur ensure that a lack of direct proof doesn’t stop a meritorious malpractice claim from getting its day in court.
Sources
Fla. Stat. § 766.102(3)(b) (2025) Presumption of negligence when a foreign object is left in a patient.
Fla. Stat. § 766.102(3)(a) (2025) “The existence of a medical injury does not create any inference or presumption of negligence…”
Dockswell v. Bethesda Mem’l Hosp., Inc., 210 So. 3d 1201 (Fla. 2017) Florida Supreme Court case confirming the foreign body presumption of negligence is mandatory and shifts the burden to the defendant.
Marrero v. Goldsmith, 486 So. 2d 530 (Fla. 1986) Florida Supreme Court case explaining res ipsa loquitur as an inference of negligence and allowing it for an unconscious patient injured during medical treatment.
McDougald v. Perry, 716 So. 2d 783 (Fla. 1998) Florida Supreme Court case discussing res ipsa; notes that an injury alone “ordinarily does not indicate negligence,” but in rare instances the facts may imply negligence (common sense inference).
Fla. Stat. §§ 766.203(2) (3) Pre suit investigation requirements (claimant must have an expert corroborate reasonable grounds for negligence).
Florida Standard Jury Instruction (Civil) 402.4c Presumption of negligence from foreign bodies (negligence is established by a foreign object left in patient, unless the defendant proves otherwise).
Attorney Bio: Jorge L. Flores, Florida Bar No. 53244, has been representing families in Miami Dade for over 30 years.
Disclaimer: This overview is general information, not legal advice. Deadlines and procedures can change based on facts and parties. For guidance on your specific situation, contact a Florida medical malpractice attorney.