Retained Surgical Instrument
Compensation Claims

If surgical negligence has set you back, we'll help you move forward

Retained surgical instruments and foreign objects can cause significant internal damage, leading to additional surgeries and health complications.

If you or a loved one has suffered from such an injury due to medical negligence, you may be eligible for compensation. Our expert clinical negligence solicitors offer comprehensive support on a No Win, No Fee basis, helping you secure the compensation you deserve.

You are not alone

On average, each week two people in England have a foreign object left inside their following a surgical or invasive procedure. Incidents like this are defined by the NHS as 'Never Events' (i.e. they should never have happened).

According to the latest finalised data in 2023, there were 101 Retained foreign object post procedure in 2019/20. as (england.nhs.uk).

Never events are usually serious clinically negligent incidents, which are wholly preventable when guidance and safety recommendations, available to all NHS healthcare providers, are implemented.

The most common claims follow general surgery, obstetrics, orthopaedic surgery , gynaecology, and urology surgery (resolution.nhs.uk)

If you decide to make a retained surgical instrument claim, your medical negligence solicitor will take you through every step of the claims process. Your solicitor will be with you until you win your claim and get the compensation you need to move forward.

What if your injury was only diagnosed months or years after treatment?

You may not immediately realize you’ve suffered a retained surgical instrument-related injury. Symptoms can take time to develop, and it may take even longer to discover the cause. Fortunately, the law considers these scenarios.

Legally, you can start a medical negligence claim within three years from the date you first became aware of your injury and the likely cause. The three-year timer does not start from the date the negligence treatment happened.

This kind of medical negligence can be complex, so you should start your claim as soon as is practical. Starting your claim earlier gives your solicitor ample time to collect medical evidence, evaluate your injuries, and negotiate interim payments and your final compensation sum.

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

Your claim for compensation in a retained surgical instrument will depend on:

• how serious the injury is,
• how much your injury affects your daily life and work performance,
• any financial expenses or losses you?ve had due to your injury.

General damages are awarded for pain, suffering and loss of amenity (PSLA). Awards for general damages are set by the Judicial College (judiciary.uk) and published in their guidelines for personal injury awards.

Special damages are awarded to compensate you for any costs or losses you've incurred or might incur as a result of your accident. These costs might include lost wages or business losses (if you're self-employed), and any other out of pocket expenses.

Special damages may also be awarded for medical treatments or procedures that you might need to treat a retained surgical instrument or foreign object, including surgical removal, imaging tests, antibiotics and pain management.

Read more:

A complete list of recoverable losses in a personal injury claim

How is compensation calculated if I have multiple injuries?

Am I eligible for retained surgical instrument compensation?

You can claim medical negligence compensation if a medical professional's substandard treatment caused you harm.

Use our injury claim calculator to find out if you can claim. Alternatively, you can speak to a claims advisor on 0800 376 1001 and find out if you have a claim in minutes.

How long do I have to start a surgical negligence claim?

For a retained surgical instrument claim, you usually have 3 years to make a claim from the date you became aware of the negligent treatment (date of knowledge).

If you are under 18, a parent, guardian or adult 'litigation friend' can make a claim on your behalf. Once you turn 18, you have until your 21st birthday to start a clinical negligence claim.

What is a surgical or invasive procedure?

A surgical or invasive procedure is any medical operation that involves incisions, penetration, or manipulation of the body. This includes traditional surgeries in an operating theatre, as well as procedures in interventional radiology, cardiology, and other medical interventions outside of traditional surgical environments, such as inserting central lines 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?

Pain and infection are initial complications that can arise from retained foreign objects after a medical procedure. If unaddressed, these issues can escalate to more severe conditions such as sepsis, a life-threatening response to infection that can lead to tissue damage and organ failure.

Additionally, the presence of a foreign object can disrupt bodily functions and lead to chronic health problems, requiring further surgical intervention and prolonged treatment.

When an additional 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.

What are the grounds for a clinical negligence claim for a retained object?

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.

Whenever a Never Event has happened, it could be medical negligence and there may be grounds for a compensation claim. If you have been injured, you may also be eligible for compensation even if the negligence isn't classified as a Never Event.

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

Although retained foreign objects can often be the result of negligence, it is important to remember that every situation is different.

You should 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.

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.

Retained surgical instrument clinical negligence claims

Retained surgical instrument claims are usually made on the grounds of clinical negligence. Click the icon below to find out more about the process.

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Sources

Author:
Howard Willis, Personal injury solicitor

About the author

Howard Willis 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.