Retained Surgical Object

Retained Surgical Objects: A Preventable "Never Event"

A retained surgical object (RSO) occurs when a surgical instrument, sponge, needle, or other item is left inside a patient's body after surgery. Like wrong-site surgery, a retained surgical object is classified by the Joint Commission as a "never event" — an error so preventable that it should never occur under any circumstances.

Despite mandatory counting protocols, retained surgical objects continue to happen. Studies estimate that RSOs occur in approximately 1 in 5,500 to 1 of every 1,000 surgeries. The most commonly retained objects are surgical sponges (which account for approximately 70% of cases), followed by surgical instruments, needles, and fragments of broken instruments.

In New York City hospitals, where hundreds of thousands of surgeries are performed each year, retained surgical objects cause unnecessary suffering, additional surgeries, infections, and sometimes death. Under New York law, a retained surgical object is almost always medical negligence.

How Retained Surgical Objects Happen

Counting Errors

The primary defense against RSOs is the surgical count — the process of counting all sponges, sharps, and instruments before, during, and after surgery. The standard of care requires:

• Initial count: Before the surgery begins, all items are counted and recorded
• Count during the procedure: If additional items are added, they are counted
• Closing count: Before closing the incision, all items are counted again
• Final count: After closing, a final count confirms all items are accounted for

When counts are incorrect, the standard of care requires that the surgeon search for the missing item before closing the incision. This may involve:

• Manual exploration of the surgical wound
• Intra-operative X-ray or fluoroscopy to locate the missing item

Factors Contributing to Counting Errors

• Emergencies: In emergency surgeries, counting protocols may be rushed or skipped
• Long surgeries: Fatigue increases the risk of counting errors
• Obesity: In larger patients, a retained sponge may not be palpable
• Multiple surgical teams: Shift changes during long surgeries can cause confusion
• Change in procedure: If the planned procedure changes mid-surgery, counts may be disrupted
• Staffing shortages: Inadequate nursing staff can lead to counting errors

Failure to Use Sponge-Tracking Technology

Modern technology exists to prevent retained sponges — including radio-frequency (RF) tagged sponges that can be detected with a wand before closing. The standard of care increasingly requires the use of such technology, particularly in high-risk surgeries. Failure to use available sponge-tracking technology may constitute negligence.

Types of Retained Surgical Objects

Surgical Sponges (70% of cases)

Surgical sponges (including laparotomy pads, gauze, and Raytec sponges) are the most commonly retained objects. A retained sponge can cause:

• Foreign body reaction: The body forms scar tissue (granuloma) around the sponge
• Infection and abscess: Bacteria trapped with the sponge cause recurrent infections
• Bowel obstruction: The sponge can compress or erode into the bowel
• Fistula formation: The sponge can erode through tissue, creating abnormal connections between organs

Surgical Instruments

Retained instruments (retractors, clamps, scissors) are less common but cause more immediate symptoms due to their size. They can perforate organs, cause internal bleeding, and require emergency removal.

Needles and Sharps

Broken needles or suture needles can be retained in the surgical wound. While smaller than sponges, they can still cause infection, migrate through tissue, and require surgical removal.

Fragments of Broken Instruments

When instruments break during surgery, fragments may be retained. The standard of care requires that all fragments be removed if they pose a risk of injury; if removal would cause more harm than the fragment, the decision to leave it must be documented and the patient informed.

Symptoms of a Retained Surgical Object

A retained surgical object may not cause symptoms immediately. Symptoms often develop weeks, months, or even years after surgery:

• Unexplained abdominal pain: Persistent or recurring pain after surgery
• Fever and infection: Recurrent fevers, abscess formation, or wound infections
• Bowel obstruction: Nausea, vomiting, abdominal distension
• Palpable mass: A lump that can be felt through the skin
• Fistula symptoms: Drainage from the wound or abnormal connections between organs
• Unexplained weight loss

When any of these symptoms appear after surgery, the patient should undergo imaging (CT scan or X-ray) to evaluate for a retained object.

New York Legal Framework

Statute of Limitations — CPLR § 214-a and the Discovery Rule

Under CPLR § 214-a, the statute of limitations is 2.5 years from the date of the surgery. However, for foreign objects, New York has a special discovery rule: the statute begins within 1 year of the date the object was discovered or should have been discovered — or within 1 year of the date the patient discovered a compensable injury caused by the object, whichever is earlier.

This is critical because many retained objects are not discovered until months or years after surgery. The 1-year discovery rule allows patients to pursue claims even when the object was not immediately detected.

Res Ipsa Loquitur

Like wrong-site surgery, retained surgical objects are a classic case for res ipsa loquitur — negligence can be inferred because the event does not ordinarily occur without negligence, the instrumentality was under the surgeon's control, and the patient did not contribute.

Certificate of Merit — CPLR § 3012-a

Every malpractice complaint must include a Certificate of Merit.

MDLaw Firm Results

• $3.5 million settlement for a patient who had a surgical sponge retained for 8 months after abdominal surgery at a Manhattan hospital
• $2.8 million settlement for a patient who required multiple surgeries to remove a retained surgical instrument at a Brooklyn hospital
• $4.2 million settlement for a patient who developed sepsis from a retained sponge at a Bronx municipal hospital

(Prior results do not guarantee a similar outcome.)

Why Choose MDLaw

MDLaw Firm has extensive experience handling retained surgical object cases in New York. We understand counting protocols, sponge-tracking technology, and the discovery rule for foreign objects. We work with board-certified surgeons and surgical nurses as expert witnesses. We handle all cases on a contingency fee basis.

If you or a loved one suffered from a retained surgical object in New York, contact MDLaw Firm at 347-524-5777 for a free consultation.