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

Summary

The court held that the statutory foreign-body presumption applies whenever an unintended foreign body is discovered inside a patient, regardless of whether direct evidence identifies the responsible actor or explains how the object remained. The presumption is mandatory but rebuttable, and the plaintiff was entitled to the corresponding standard jury instruction shifting the burden to the health care provider to disprove negligence. The court also held that refusing the instruction and giving a misleading nonstandard instruction were harmful errors requiring a new trial. Justice Polston, dissenting, would have dismissed the review for lack of the required jurisdictional conflict, with Justice Canady joining.