A retained surgical item claim may arise when a swab, sponge, needle, instrument or other object is unintentionally left inside a patient after surgery or another invasive procedure. These incidents can cause pain, infection, further surgery and prolonged recovery. Coleman Legal LLP investigates how the item was retained, whether the care fell below the required standard and what harm followed.
What counts as a retained surgical item
A retained surgical item is an object used during a procedure that remains unintentionally inside the patient after the procedure is completed. Swabs and surgical sponges are commonly reported, but needles, guidewires and instrument fragments can also be retained.
Operating-theatre teams use counting and checking procedures to reduce this risk. Research shows retained items can still occur even where a count was recorded as correct. A systematic review estimated retained surgical items at about 1.3 events per 10,000 procedures.
Irish data show that these incidents also arise in clinical claims. A State Claims Agency review of closed maternity claims from 2004 to 2014 identified 30 retained-foreign-body claims, 28 involving retained swabs.
When a claim can be brought
The presence of a retained item does not by itself determine the outcome or value of a claim. The questions are whether the care fell below the required standard and whether that caused injury or additional loss.
In many cases, the harm is the need for a further procedure to remove an object that should not have remained in the body. That may involve another anaesthetic, additional pain, a longer recovery and time away from work. Complications can include infection, abscess, perforation, sepsis or persistent pain.
Proving the claim
Two things must be established. The first is that the care fell below the standard reasonably expected of a competent surgical team. Because swab and instrument counts are routine, a miscount is difficult to justify, and these cases are often admitted earlier than other medical negligence claims.
The second is causation: that the retained item caused harm which would otherwise have been avoided. Imaging, operation notes and the theatre count records are usually decisive, and they are obtained and reviewed independently before any claim is issued.
Gathering the evidence
A solicitor requests the full medical records, including the theatre register and the swab count documentation, and instructs an independent consultant to review them.
Patients have a right of access to their own medical records, and those records are where any independent opinion begins.
Time limits
A retained surgical item claim of this kind is generally subject to a two year period, running from the date of the incident or from the date of knowledge, which is the date the person knew, or ought reasonably to have known, that their injury was connected to the care they received.
Where a child is involved, time does not begin to run until their eighteenth birthday. Claims of this kind are not submitted to the Injuries Resolution Board and are issued directly in the courts.
