Malpractice Lawsuit Against Hospital for Leaving a Pad Inside Patient's Body

In Hernandez v. Amisub, 714 So. 2d 539 (Fla. 3d DCA 1998), the plaintiff alleged that a hospital was negligent in leaving a pad inside his body following surgery, and that the hospital had misrepresented material facts concerning the pad count. Upon remand and the close of the plaintiff's case, the hospital moved for a directed verdict, asserting that the plaintiff had proved neither concealment nor intentional misrepresentation, which precluded the seven-year statute of repose. The trial court granted the hospital's motion. Id. at 541. On appeal, the Third District reversed: Notwithstanding the hospital's assertion to the contrary, there was no need for Hernandez to prove that the Hospital or its employees had actual knowledge that a pad had been left inside Hernandez' abdomen, in order for Hernandez' claim to succeed. There is no indication in section 95.11(4)(b) that the term "concealment" includes a scienter element. The term "conceal" does not necessarily infer intent or deliberation. Indeed, given the facts here, it is quite unlikely--even unthinkable--that anyone would intentionally or deliberately "conceal" a foreign object in a patient's body. Moreover, even under an "intentional misrepresentation" claim, the misrepresentation need not be deliberate. Misrepresentation may also be shown by carelessness or recklessness as to the truth of the matter asserted. See Ocean Bank of Miami v. Inv-Uni Investment Corp., 599 So. 2d 694 (Fla. 3d DCA 1992). We believe that Hernandez proved "concealment" or, alternatively, "intentional misrepresentation of fact" here. The specific misrepresentation was the Hospital's report that it had performed an accurate count of lap pads at the conclusion of Hernandez' operation when it had not. Not only was the count not properly performed, as evidenced by the pad left inside Hernandez' body, but the Hospital demonstrated reckless disregard for the truth by its false report indicating that the count had been properly performed. Hernandez, 714 So. 2d at 541-42.