Retained Surgical Instrument Compensation Claim

If surgical instruments, surgical tools or other medical equipment were left inside your body after surgery, JMW’s specialist medical negligence solicitors can help you to seek compensation.

Our medical negligence team handles retained surgical instrument claims for patients who have experienced pain, infection, further surgery, additional surgeries or serious complications after a surgical procedure. We can review what happened, obtain your medical records, gather medical evidence and advise whether you may have a surgical negligence claim.

At JMW, we will listen carefully to your experience and provide expert legal advice about your options. We will explain the claims process clearly, deal with the legal and medical evidence on your behalf, and work to secure compensation for the injury, treatment, financial losses and ongoing impact you have experienced.

To speak to a medical negligence solicitor about a retained surgical instrument claim, call JMW Solicitors free on 0345 872 6666 or complete our online contact form. Our negligence solicitors work with clients nationwide and may be able to handle your claim on a no win, no fee basis.

How JMW Can Help

If you believe surgical instruments, surgical tools, surgical materials or any other medical equipment were left inside your body after surgery, JMW’s specialist clinical negligence solicitors can help you understand whether you are entitled to bring a retained surgical instrument compensation claim, and represent you throughout the legal process.

When you contact JMW, we will:

• Review your potential claim: We will listen carefully to what happened, discuss your symptoms and explain whether you may have grounds for a medical negligence claim. This may include looking at whether the surgical team failed to follow the correct checks before, during or after your surgical procedure. Such errors are within NHS Resolution’s “never events” framework, meaning they are claims which are unlikely to be defended.  
• Obtain and assess your medical records: We can request and review your medical records, including operation notes, scan results, discharge summaries and any records relating to further surgery or additional treatment. This helps us build a clear picture of how the retained object came to be left inside your body and what harm it has caused.
• Gather independent medical evidence: Medical evidence is central to any surgical negligence claim. We can instruct independent medical experts to assess what loss has been suffered as a result of the treatment, and to confirm that the care was clearly negligent.
• Explain what compensation you may be able to claim: We will advise on the compensation that may be available for the harm caused. A clinical negligence claim can include general damages for pain, suffering and loss of amenity, as well as special damages for financial losses such as treatment costs, lost earnings, care needs, travel expenses and the cost of further surgery.
• Manage the claims process on your behalf: Our solicitors will handle the claims process for you, from the initial investigation through to correspondence with the NHS trust, private hospital, insurer or legal representatives responsible. We will provide clear updates, clear and impartial advice and practical support at every stage.
• Pursue the best possible outcome: JMW’s clinical negligence team is known for its professional and empathetic approach, and has recovered millions of pounds in compensation for clients affected by medical negligence. We will work to secure the compensation you are entitled to while making the process as straightforward as possible.

Our team is led by Eddie Jones and Angharad Hughes and includes highly regarded medical negligence solicitors who have supported patients affected by surgical negligence, retained surgical items and NHS never events. Members of the team are also recognised by specialist medical negligence panels, including Action against Medical Accidents (AvMA) and the Law Society’s specialist panel, meaning that you can place your trust in JMW to handle your case with expertise and compassion.

Meet the Team

At JMW, our team thoroughly understands the implications if an NHS ‘never event’ has happened to you, and the compensation you may be entitled to if foreign objects are retained due to medical negligence.

Case Studies

What Is a Retained Surgical Instrument Claim?

A retained surgical instrument claim is a type of medical negligence claim that may be brought when surgical instruments, tools, items or other medical equipment are accidentally left inside a patient’s body during a surgical procedure.

This can include items such as swabs, gauze, needles, clamps, fragments of medical equipment or other retained surgical items. In some cases, the retained object is discovered soon after surgery because the patient reports pain, infection or complications at the surgical site. In others, the foreign object may only be found months or years later during scans, investigations or further surgery.

Leaving medical equipment inside the body can have serious implications. Depending on the item involved and where it was left, a patient may experience severe pain, infection, internal bleeding, gastrointestinal perforation, organ damage, nerve damage, vascular injuries and sometimes permanent damage. In the most serious cases, retained surgical instruments can cause life-altering injuries, organ failure or a life-threatening response such as sepsis.

A retained surgical instrument compensation claim can enable you to seek compensation for the pain, injuries, treatment and financial losses you have experienced. To succeed with a surgical negligence claim, it is necessary to show the care was poor, albeit these types of claims are rarely defended. We must still show that some quantifiable and compensable harm has been sustained.

JMW’s negligence solicitors can investigate what happened, obtain your medical records and gather the medical evidence needed to establish whether the surgeon responsible, wider surgical team or hospital may be liable for the impact on your life.

What Is an NHS Never Event?

An NHS never event is a serious patient safety incident that is considered wholly preventable when the correct systems, guidance and safety procedures are followed. These incidents are called “never events” because they should not occur in healthcare settings where established safety measures are in place.

Never events are not the same as recognised risks or complications that can arise despite appropriate care. Instead, they usually point to a clear failure in a process designed to protect patients, such as identification checks, surgical safety procedures, medication controls or equipment-counting protocols.

Retained surgical items are included within the NHS never event framework because healthcare providers are expected to have reliable systems for checking that nothing has been unintentionally left inside a patient after a procedure. Where those systems fail, the incident may form part of a surgical negligence or medical negligence claim.

The fact that an incident is classed as a never event can be important evidence, but it does not by itself determine the outcome or value of a never event compensation claim. The patient’s injuries, recovery and financial losses and the relevant medical evidence will all need to be considered.

Types of Surgical Items That May Be Left Inside the Body

Retained surgical items can vary from small fragments of medical equipment to larger surgical tools. The type of item involved will often depend on the nature of the surgery, the area of the body being operated on and the equipment used during the procedure.

Common examples include:

• Surgical swabs, sponges, pads and gauze
• Needles, including suture needles and syringe needles
• Clamps, forceps and retractors
• Scalpels, drill bits and other surgical tools
• Fragments of wire, screws, pins, clips or staples
• Pieces of broken medical equipment

Soft materials such as swabs and gauze may be more likely to be retained during abdominal, pelvic or gynaecological surgery, where they are used to control bleeding or absorb fluid. Metal instruments, fragments or fixation materials may be associated with orthopaedic, cardiac or more complex procedures.

In some cases, the retained item is recorded as an obvious surgical error shortly after the operation. In others, the issue may only become clear later when the patient reports pain, develops an infection or undergoes scans for ongoing symptoms. The medical records, surgical notes and post-operative investigations will usually be important in establishing what was left inside, when it was discovered and how it affected the patient.

Symptoms and Warning Signs of a Retained Surgical Item

The symptoms of a retained surgical item vary depending on what was left inside the body, where it was located and how long it remained there. Some patients experience problems soon after surgery, while others may not realise anything is wrong until months or even years later.

Possible warning signs include:

• Persistent or worsening pain at or near the surgical site
• Swelling, inflammation or tenderness
• Fever or signs of infection
• Wounds that do not heal as expected
• Discharge, bleeding or unusual fluid from the wound
• Nausea, vomiting or bowel problems after abdominal surgery
• Unexplained fatigue or a general decline in health
• New symptoms that appear after an initially normal recovery

In more serious cases, a retained foreign object may lead to complications such as internal bleeding, gastrointestinal perforation, sepsis, organ damage, nerve damage or vascular injuries. These complications can have serious implications for the patient and may require further surgery or additional treatment.

Anyone who is concerned about symptoms after surgery should seek medical advice as soon as possible. A retained object may be identified through investigations such as an X-ray, CT scan, ultrasound, MRI scan or further surgical review.

What Can You Claim Compensation For?

A retained surgical instrument compensation claim is intended to reflect the physical, emotional and financial impact of the negligence. The amount of compensation will depend on the nature of the retained item, the harm it caused, how long it remained inside the body and whether further surgery or additional treatment was needed.

Compensation is usually divided into two main categories. General damages compensate you for the pain, suffering and loss of amenity caused by the injury. This may include:

• Pain and discomfort caused by the retained foreign object
• Infection, inflammation or complications after surgery
• Scarring or the effects of further surgery
• Psychological distress caused by the incident
• Loss of enjoyment of day-to-day activities
• Long-term symptoms, disability or permanent damage

The value of general damages is assessed using medical evidence, including independent expert reports on the severity of your injuries and your expected recovery.

Special damages compensate you for financial losses and expenses linked to the negligence. Depending on your circumstances, this may include:

• Lost earnings if you were unable to work
• Private treatment, rehabilitation or therapy costs
• Prescription, medication or pain management costs
• Travel expenses for medical appointments
• Care and support provided by relatives or professionals
• The cost of further surgery or additional procedures
• Future financial losses if your injuries have a long-term impact

Keeping receipts, wage slips, appointment letters and records of expenses can support this part of a surgical negligence compensation claim. JMW will advise on the evidence needed to show how the retained surgical item has affected your health, finances and daily life.

What Are the Time Limits for Making a Retained Surgical Instrument Claim?

There are strict time limits for making a medical negligence claim. In most cases, you have three years to start the case in the formal Court process from the date that the negligent treatment occurred, or from the date you first became aware that negligence may have caused your injury. The latter is known as the date of knowledge.

For retained surgical instrument claims,some patients only discover that a retained object was left inside the body months or years after the original surgery, often after scans, further surgery or investigations into ongoing pain or infection. In these circumstances, the three-year period may run from the point when the retained item was discovered.

Different rules apply to children. If the patient was under 18 at the time of the negligence, the three-year time limit does not begin until their 18th birthday, meaning they may have until their 21st birthday to bring a claim. There are also different rules for patients who lack mental capacity.

However, it is important to consult a medical negligence solicitor as soon as possible, as there is a large amount of work to be completed before starting the case in court. 

Learn more by reading our guide to the time limits for medical negligence claims, or get in touch with our team for advice.

The Claims Process for Retained Surgical Instrument Compensation

The process for a retained surgical instrument claim will depend on the circumstances of the surgery, the evidence available and whether the hospital or healthcare provider accepts responsibility. JMW will guide you through each stage and explain what is happening as your claim progresses.

• Initial consultation: The first step is to speak to a medical negligence solicitor about what happened. We will ask about the surgical procedure, when the retained object was discovered, the symptoms or injuries you have suffered, and how the incident has affected your life.
• Reviewing your medical records: We will obtain and review your medical records, including operation notes, nursing records, scan results, discharge documents and records of any further surgery or treatment. These documents establish what happened before, during and after the procedure.
• Gathering medical evidence: Independent medical evidence is usually needed to assess whether the care you received fell below the expected standard. A medical expert may also advise on whether the retained surgical item caused your injuries, pain, infection, complications or need for additional treatment.
• Sending a Letter of Claim: If there is evidence to support a surgical negligence claim, a formal Letter of Claim will usually be sent to the NHS trust, private hospital or healthcare provider responsible. This sets out the allegations of negligence, the injuries involved and the basis of the compensation claim.
• Negotiation or court proceedings: The defendant will investigate and respond to the claim. Many medical negligence claims are resolved through negotiation, but court proceedings may be needed if liability is denied, the value of the claim is disputed or a deadline must be protected.

Throughout the claims process, JMW will provide clear advice, keep you updated and work to secure the best possible outcome for you. Read more about the stages of making a medical negligence claim.

Q

How are retained objects discovered?

A

Retained objects may be discovered through investigations such as X-rays, CT scans, MRI scans, ultrasound scans or further surgery. Some are found soon after the original procedure, while others are only identified later when symptoms such as pain, infection or complications are investigated.

Q

Is leaving an object in a patient a crime?

A

A retained object is usually dealt with as a patient safety incident and, where harm has been caused, as a potential medical negligence claim. Whether any separate regulatory, disciplinary or criminal issue arises will depend on the specific facts. A compensation claim focuses on establishing negligence, proving harm and recovering compensation for the patient.

Q

Can I claim if the surgery was on the NHS?

A

If surgical instruments, surgical tools or other medical equipment were left inside your body during NHS treatment, any claim will usually be brought against the NHS trust responsible for the hospital where the surgery took place. This is because the trust is generally responsible for the actions of its employees, including the surgical team, theatre staff, nurses and other medical professionals involved in your care.

In some cases, a claim may focus on the actions of an individual surgeon or member of staff, but the legal claim is usually made against the NHS trust rather than against that person. The issue is whether the care provided fell below the standard expected of a reasonably competent medical professional, and whether that negligence caused you injury.

NHS clinical negligence claims are usually handled through NHS Resolution, which manages claims made against NHS organisations in England. If the claim succeeds, compensation is not normally paid by the individual surgeon or hospital staff member. It is paid through the NHS’s clinical negligence arrangements, so you do not need to worry about the cost of claims made against the NHS impacting on frontline care.