A Guide to Claiming Retained Surgical Instrument Compensation
If your life, or the life of a loved one, has been affected by a retained surgical instrument injury we can help.
The purpose of this guide is to help anyone who has suffered a retained surgical instrument injury and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.
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.
Do I have a retained surgical instrument claim?
Medical negligence claims differ from personal injury claims as the following will need to be established:
- there was a breach of duty ("negligence" or "fault"); and
- the breach of duty was the cause of your injury, damage or loss ("causation" or "avoidable harm").
Breach of Duty
A breach of duty means that the standard of care you received was below the standard that could reasonably be expected of a competent healthcare professional.
To establish causation, it will need to be demonstrated that the injury you suffered resulted from the negligent care rather than the underlying condition.
Get an impartial opinion
To get impartial advice on whether you have a claim, speak to a retained surgical instrument claim expert on 0800 612 7456.
A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.
You can also find out if you have a claim with our Online Claim Checker.
Is compensation always payable?
If an error occurred during treatment and the patient was harmed as a result, this may be referred to as an "undesirable outcome".
Not all treatment that results in an undesirable outcome will result in the payment of compensation.
Sometimes an undesirable outcome is due to a known risk associated with the treatment, or due to a mistake that a doctor could reasonably have made in the circumstances.
How long do I have to start a claim?
If your injury is apparent immediately after medical treatment, you will have 3 years to start a claim.
It may be that the negligent procedure happened more than 3 years ago, but your injury was only diagnosed recently, within the last 3 years. If so, you may still be able to make a claim.
What if your injury was diagnosed months or years after treatment?
You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.
The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).
It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.
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.
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.
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.
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 maybe 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.
Are there 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.
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.
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.
The amount of money you could claim for your retained surgical instrument will depend on:
- the extent of your injury, and
- any financial losses or costs you have incurred.
At the start of your claim, your solicitor will consider the many ways your retained surgical instrument has affected your life. Your solicitor will take all of these effects into account to calculate the correct compensation award for you.
This calculation will factor in 'general damages' and 'special damages'.
General damages are awarded for pain, suffering and loss of amenity (PSLA).
Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.
Special damages are for financial losses and expenses you have incurred as a result of the accident.
What can I claim for after a retained surgical instrument? (see list)
Examples of special damages (losses you can claim for) include:
- Lost earnings (including future earnings)
- Medical treatment costs
- Travel costs
- Costs of care
- Costs of adapting your home or car
What is the average injury compensation for a retained surgical instrument claim?
The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.
However, the money you would receive following a retained surgical instrument will depend entirely on your specific circumstances.
Your retained surgical instrument compensation will be calculated based on the unique impact your injuries have had on your life, your ability to work, and the actual financial losses you have incurred as a result of your injuries.
See the injury table above for some examples.
Can I claim for physiotherapy and private care costs?
Private treatment can be expensive, but funding towards the cost of this treatment frequently comprises part of a compensation award. Your solicitor may even be able to arrange access to private medical care as soon as your claim is accepted.
Will I have to pay tax on my retained surgical instrument compensation?
If you receive financial compensation following a retained surgical instrument injury, specific legislation ensures that you do not have to pay tax on it. This is the case no matter whether the compensation is received as a lump sum or as staggered payments.
Retained surgical instrument compensation
Calculating how much compensation you can claim for a retained surgical instrument injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your retained surgical instrument claim could be worth now:
How long does a retained surgical instrument claim take?
The length of time needed to secure compensation for retained surgical instruments can vary considerably.
For example, a simple uncontested medical negligence claim could be settled in 12 to 24 months. If liability is denied, however, the process might take considerably longer. On average a medical negligence claim takes between 12 and 36 months. See more:How long will my claim take?
Will I still be able to claim for a retained surgical instrument after the law changes in April 2020?
The law relating to personal injury claims is changing in April 2020.
You will no longer be able to claim no win, no fee compensation using a solicitor for lower value claims (under £5,000).
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
Caring and sensitive support
Your solicitor will handle your retained surgical instrument claim from the initial consultation through to the financial settlement. In addition, your solicitor will work with other specialists to help you with:
- Financial support: interim payments while you are unable to work.
- Advice: on personal injury trusts, tax and welfare benefits.
- Coordination: with rehabilitation providers and therapists.
- Access: to treatment and therapies not always available on the NHS.
No win, no fee
No win, no fee takes the risk out of making a retained surgical instrument claim. If you don't win your claim, you won't have to pay your solicitor any legal fees.
No win, no fee guarantee
If you have been injured through no fault of your own, our no win, no fee guarantee takes the risk out of making a retained surgical instrument injury compensation claim.
What do I pay if I win my retained surgical instrument claim?
Your injury solicitor will receive a success fee which is deducted from your compensation, only after your compensation is awarded. The solicitor's success fee can be up to 25%. You and your solicitor can agree the success fee before you start your claim.
What do I pay if I do not win my retained surgical instrument claim?
If your retained surgical instrument claim is not successful then you won't have to pay your solicitor any fees. Your solicitor may take out insurance to ensure there will be nothing to pay.
Can I get Legal Aid?
Legal aid is no longer available when making a personal injury claim, but a Conditional Fee Agreement (No Win, No Fee) can reduce the financial risks of making a claim.
How can Quittance help?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning medical negligence claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.
Call us FREE 0800 612 7456 or arrange a callback:
if you can claim
to start a claim
Retained surgical instrument FAQ's
Can I claim for someone else?
Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.
If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.
The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.
Will I have to go to court?
Highly unlikely. The vast majority of claims that are settled by the solicitor panel are settled out of court.
Only a very small percentage (approx. 5%) of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.
Cases that do ultimately go to court are held in front of a judge, not a jury.
Will I have to go to a solicitor's office?
No. You will not need visit a solicitor's office. As with most professional services, it is no longer necessary to meet face to face with your solicitor. Personal injury claims are dealt with via email, post and telephone.
Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.
Can I get an early compensation payment?
If you suffer financial hardship as a result of an injury, you may be able to claim an interim compensation payment.
An interim payment is a partial settlement of your claim which is paid before your claim is concluded. The amount you receive in interim payments would then be deducted from your final compensation settlement or award.
About the author
Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.
Read more about this Quittance Legal Expert