Question 1

How common are retained foreign objects after surgery?

Accepted Answer

Retained surgical items are uncommon, and hospitals use counting, imaging and other safety procedures to prevent them. Published estimates of how often they happen vary by study and procedure, so we do not rely on any single figure.

Risk is often discussed in connection with emergency surgery, unexpected changes during a procedure, long operations and handoffs between surgical teams. When an item is left behind, whether that was negligence, and who is responsible, still has to be established from the operative report, the count documentation and the circumstances of the surgery.

Question 2

What are the most commonly retained surgical items and their effects?

Accepted Answer

Items found in retained-object cases include surgical sponges and gauze, needles, instrument fragments, guide wires, pieces of drains and small device parts. The effects depend on the item and where it is. A retained sponge can cause inflammation, infection or a mass; a sharp object can injure nearby tissue; and some objects cause no symptoms for a long time. Many patients need another procedure to remove the item and treat any complications.

Under New York's deadline statute, a foreign object does not include a chemical compound, a fixation device, or a prosthetic aid or device (CPLR 214-a). Implants and materials intended to remain in the body are therefore treated differently from an item left behind by mistake.

Question 3

How long does it take to discover a retained foreign object after surgery?

Accepted Answer

There is no reliable rule. Some retained objects are found soon after surgery when pain, fever or infection leads to imaging. Others are discovered months or years later, sometimes on imaging done for an unrelated reason, and a retained sponge can sometimes look like a mass on a scan.

The timing matters legally. For a qualifying foreign object, CPLR 214-a allows an action within one year of the date the object is discovered or the date of discovery of facts that would reasonably lead to its discovery, whichever is earlier. The one-year period can therefore start before the object is confirmed, if earlier symptoms or test results reasonably pointed to it. This one-year period is in addition to the ordinary two years and six months from the surgery.

Question 4

How much compensation can I recover for a retained foreign object?

Accepted Answer

If negligence and causation are proved, damages can include medical expenses for removal and related treatment, lost earnings, and compensation for pain and suffering, including the effects of any infection, additional surgery or lasting harm.

The amount depends on the injury and on the proof. There is no typical value for these cases, and results in other cases do not predict the outcome of yours. We will give you an honest assessment after reviewing your records.

Question 5

Who is liable when a foreign object is left inside me - the surgeon, hospital, or both?

Accepted Answer

It depends on who was responsible for the steps that failed. The surgeon is responsible for his or her own conduct during the operation. A hospital is generally responsible for the negligence of its employees, such as the nurses who perform and document the counts, and may be responsible for its own policies and procedures. A radiologist may be involved if an object was visible on imaging that was misread.

Identifying the right defendants requires the operative report, count sheets, nursing notes, imaging reports and information about who employed each member of the surgical team. Where more than one party is responsible, each can be named in the same lawsuit.

Question 6

What is the statute of limitations for retained foreign object cases in New York?

Accepted Answer

The general medical malpractice deadline is two years and six months from the act or omission, or from the last treatment where there is continuous treatment for the same condition (CPLR 214-a). For a foreign object, the statute also allows an action within one year of the date of discovery of the object or of the date of discovery of facts that would reasonably lead to its discovery, whichever is earlier.

Because the earlier date controls, the one-year period can begin when symptoms, imaging or other facts would reasonably have led to the object being found, even before it is actually confirmed. The foreign-object rule does not apply to a chemical compound, a fixation device, or a prosthetic aid or device (CPLR 214-a).

If the surgery took place at a public hospital, separate notice rules apply. For NYC Health + Hospitals, a notice of claim is generally due on Health + Hospitals within 90 days and the lawsuit generally must be commenced within one year and 90 days (Unconsolidated Laws section 7401(2)); serving the City Comptroller instead does not satisfy that requirement (Scantlebury v. New York City Health & Hospitals Corp., 2005). A claim against a State-operated hospital goes to the Court of Claims and must be filed and served on the Attorney General within 90 days of accrual, unless a written notice of intention is served within that time (Court of Claims Act section 10(3)). A county or other municipal hospital may require a notice of claim within 90 days under General Municipal Law 50-e.

How these rules apply to a particular discovery date is fact-specific, so speak with a lawyer as soon as a retained object is suspected.

Question 7

Are there safety protocols that should prevent retained foreign objects?

Accepted Answer

Yes. Operating rooms use counts of sponges, needles and instruments at the start of a procedure, before closing a body cavity and before closing the skin, with the counts documented. When a count does not reconcile, the team is expected to search the surgical field, and imaging is often used to look for the missing item. Many sponges contain markers that show on X-ray, and some hospitals also use radio-frequency or barcode systems to track sponges.

Professional guidelines and the hospital's own written policies are commonly used to describe what was expected. In a malpractice case, we compare those expectations with the count sheets, the operative and nursing notes and any imaging records.

In New York, a retained-object case may allow the jury to infer negligence under the doctrine of res ipsa loquitur. That doctrine merely permits the jury to infer negligence from the circumstances; it does not require the jury to do so (Kambat v. St. Francis Hospital, 1997).

Question 8

What if the retained foreign object is discovered years after my surgery?

Accepted Answer

A late discovery does not by itself prevent a claim. Under CPLR 214-a, the foreign-object period is one year from discovery of the object or of facts that would reasonably lead to its discovery, whichever is earlier. If symptoms or earlier imaging reasonably pointed to the object, the clock may already have started, so act promptly.

Late-discovery cases can raise practical challenges. Records of the original surgery may be harder to obtain, members of the surgical team may be difficult to locate, and the defense may dispute whether your symptoms were caused by the object. Removal records, pathology reports, imaging and expert review are used to address those questions.

If an object is found, request the records of the original surgery and of the removal, ask the hospital to preserve the removed item and the pathology report, write down a timeline of your symptoms and treatment, and contact a lawyer.

Question 9

Do I need a medical expert to prove my retained foreign object case?

Accepted Answer

Usually, in practice. In Kambat v. St. Francis Hospital (1997), the Court of Appeals held that a jury could be instructed on res ipsa loquitur where a laparotomy pad was left inside a patient, which permits the jury to infer negligence from the circumstances.

Even so, medical testimony is usually needed to explain what harm the object caused, what treatment was required and what the future holds, and to respond to defense arguments that symptoms came from another condition. Surgeons, operating-room nurses and treating physicians are commonly involved.

How expert and other case expenses are handled is explained in the written retainer agreement before you decide to proceed.

Question 10

What are the immediate steps I should take if I suspect a retained foreign object?

Accepted Answer

First, get medical care. Severe or worsening pain, fever, redness, swelling or drainage at the incision, or a new lump after surgery should be evaluated promptly, and emergencies call for 911 or an emergency room. You may want a doctor other than the original surgeon to evaluate you, and you can ask whether imaging is needed to rule out a retained object.

Second, request your records: the operative report, anesthesia and nursing records including count sheets, imaging reports, pathology reports and discharge papers from the original surgery, and the records of any later evaluation or removal.

Third, if the object is removed, ask the hospital to preserve it and to document it in a pathology report.

Fourth, keep a written timeline of your symptoms, treatment, time missed from work and expenses, and get legal advice before giving statements to an insurer or risk-management office.

Finally, contact a lawyer promptly. The one-year foreign-object period can start at discovery of the object or earlier, at discovery of facts that would reasonably lead to it, and public hospitals have 90-day notice requirements. Call (516) 227-2662 for a free consultation.

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