Retained surgical instrument compensation claims

This article sets out what you need to know about making a successful retained surgical instrument compensation claim.

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On average, each week two people in England have a foreign object left inside their body following a surgical or invasive procedure. Incidents like this are defined by the NHS as Never Events .

These are usually serious clinically negligent incidents, which are wholly preventable when guidance and safety recommendations, available to all NHS healthcare providers, are implemented.

Surgeon in theatre
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Do I have a retained surgical instrument claim?

If you were injured as the result of a retained surgical instrument in the last three years (longer if children were involved) and someone else was to blame, then we can help you make a compensation claim.

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What is a surgical/invasive procedure?

As well as operations in theatre, surgical/invasive procedures include interventional radiology, cardiology, interventions related to natural birth and interventions performed outside of the surgical environment e.g. central line placement in ward areas.

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What is classified as a foreign object?

At the start of any surgical/invasive procedure certain items are subject to a formal counting. The NHS has a definitive list, which includes swabs, instruments, needles and guidewires. Before the operation is completed, the items are recounted and checked to ensure no foreign objects remain inside the patient.

If this is carried out correctly, a patient should never suffer from a foreign object left inside their body. But in the 12 months to 31 March 2015, 102 of the 308 Never Events recorded by NHS England were classified as retained foreign object post-procedure . 46% of these were retained swabs.

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What can happen if a foreign object is retained in the body?

It could cause a number of problems for a patient. Pain and infection are complications of retained foreign objects post-procedure. More serious problems can occur, including sepsis and organ failure.

When a second procedure is necessary to remove the foreign object, this prolongs recovery time.

It does not matter what size the retained foreign object is, or its potential to cause harm, it will still be classified as a Never Event.

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Are all foreign objects included?

Not all items used during an operation are subject to formal counting. Those inserted any time before the procedure (where they will be removed during the procedure), are not counted. Others intentionally left in place, with removal planned for a later date, are noted on the patient's records.

Sometimes items are known to be missing prior to the completion of the procedure and may be within the patient (e.g. screw or drill fragments). Further action to locate and retrieve them may be impossible or more damaging to the patient, so they are left in place, the patient informed and the items recorded.

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Is this grounds for a clinical negligence claim?

Although foreign objects have the potential to cause serious patient harm or death, this need not have occurred for the incident to be classed as a Never Event. As their name suggests, Never Events should not happen. When they do it could be medical negligence and there may be grounds for a compensation claim.

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What should you do if you have suffered from a retained foreign object?

Although retained foreign objects are established never events', it is important to remember that every situation is different. It is wise to seek legal advice from a specialist lawyer who will listen to the details of the case and consider the options in pursuing a claim for medical negligence.

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Further information

The revised Never Events Policy and Framework published on 27 March 2015, includes changes to the definition of a Never Event and adjustments to the types of incident included on the Never Events list of 14 incident types. It is applicable for all incidents occurring on or after 1 April 2015. Further details may be found here.

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How much compensation can I claim for a retained surgical instrument injury?

The amount of compensation you will receive depends on a number of factors. Our medical negligence compensation calculator provides an accurate estimate of your likely compensation.

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Meet our team

The national panel of QLS solicitors handle all types of clinical negligence claims, from less-severe claims to life-changing injury. Our lawyers are selected for their professionalism and their winning track record.

Click here to meet more of the Quittance Legal Services team.

Kevin Walker Serious Injury Panel Solicitor
Carol Cook Clinical Negligence Panel Solicitor
Lee Raynor Clinical Negligence Panel Solicitor
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No win, no fee retained surgical instrument claims

Legal Aid is no longer available for injury claims.

Personal injury solicitors now work on a No Win, No Fee basis.

No Win, No Fee means that if your claim is not successful, you will not need to pay any legal fees.

If you do win your case, a success fee will be deducted from the compensation award and paid to your solicitor.

Read more about how a No Win, No Fee agreement works

Paul Carvis, Personal injury solicitor

About the author

Paul is a member of the Law Society Personal Injury Panel, a member of the Association of Personal Injury Lawyers, and has served as a Deputy District Judge, giving him a uniquely broad understanding of the claims process.

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