Finding out that a surgeon left a sponge, clamp, or other instrument inside your body is one of the most alarming things a patient can face. In Washington State, retained surgical instruments are classified as a “never event” and almost always constitute medical malpractice. Importantly, Washington law gives you special protection if you didn’t discover the retained object right away.
You thought the surgery was behind you. Then the pain started, or the infection, or something just felt wrong, and eventually you found out why. A surgical sponge. A clamp. A piece of tubing. Left inside your body when the surgical team closed you up.
This is not a rare complication you were warned about. It is a preventable error that should never happen, and in Washington State, it almost always gives you grounds for a medical malpractice claim. At Gilbert Law Firm, our medical malpractice attorneys have helped patients navigate these cases. Here is what you need to know.
What Are Retained Surgical Instruments?
A retained surgical instrument, also called a retained foreign body or retained surgical object, is any item unintentionally left inside a patient’s body at the end of a surgical procedure. This is legally distinct from medical devices intentionally implanted for therapeutic purposes. Common retained objects include:
- Surgical sponges: The most common retained object, accounting for more than two-thirds of cases. Sponges are used to absorb blood during surgery and can be difficult to locate if they become saturated
- Clamps and retractors: Metal instruments used to hold tissue or vessels during a procedure
- Needles and suture materials: Small needles can be extremely difficult to locate if dropped during a procedure
- Scalpel blades and tips: Broken or detached blade fragments that are not accounted for
- Tubing and drainage materials: Catheter tips or drainage tubes left behind inadvertently
It is estimated that retained surgical objects occur in approximately 1 in 5,500 surgeries in the United States. Given the volume of surgeries performed annually, this means thousands of patients are affected every year, many of whom don’t realize what has happened until they develop serious complications.
Why This Should Never Happen
Surgical teams are required to follow strict counting protocols before, during, and after every procedure. Before the surgery begins, nurses and surgical technicians count all instruments, sponges, and needles. Those counts are repeated at critical points during the surgery and again at closure. If the count does not match, the surgical team is required to search the surgical field and the patient before closing.
Modern operating rooms also use additional safeguards, including radio-frequency detection technology that can identify tagged sponges and instruments inside the body and barcoding systems that track every item throughout a procedure.
When a surgical instrument is retained, it means these counting protocols failed, the detection systems were not used or failed, or the team proceeded despite an incorrect count. These are systemic failures, not unavoidable complications, and Washington law recognizes them as such.
What Happens to Your Body When an Instrument Is Retained?
The health consequences of a retained surgical instrument depend on the type of object, its location, and how long it remains in your body. Common complications include:
- Infection and sepsis: Retained objects create a focus for bacterial growth, often leading to serious infection that can become life-threatening
- Abscess formation: The body may wall off a retained object, forming a painful abscess that requires surgical drainage
- Internal organ damage: Sharp or rigid objects can migrate and perforate adjacent organs, including the bowel, bladder, or blood vessels
- Bowel obstruction: Retained objects can cause blockages in the digestive tract
- Chronic pain: Even objects that do not cause acute infection can cause significant ongoing pain and inflammation
- Additional surgeries: Almost every retained surgical instrument case requires at least one corrective procedure to remove the object, with all the same risks, recovery time, and expenses you were already exposed to beforehand
Is a Retained Surgical Instrument Always Malpractice in Washington?
In almost every case, yes. Like wrong-site surgery, retained surgical instruments are classified as a “never event” by the Joint Commission and CMS, meaning they should never happen when medical professionals actually follow proper surgical protocols.
Under RCW 7.70.030, a malpractice claim in Washington requires proving that a healthcare provider failed to follow the accepted standard of care and that failure caused your injury. A retained surgical instrument nearly always satisfies both, because the standard counting and detection protocols exist precisely to prevent this outcome. When they fail and an object is left inside you, that is a breach of the standard of care, not an acceptable complication by any means.
Washington courts have also recognized that retained surgical instrument cases may fall within the common knowledge exception to the expert witness requirement, meaning the negligence may be self-evident to a jury without requiring expert testimony on the standard of care.
Who Can Be Held Liable?
As with wrong-site surgery, retained surgical instrument cases often involve multiple liable parties:
- The surgeon: As the lead of the surgical team, the surgeon bears ultimate responsibility for ensuring the surgical field is clear before closure
- The surgical nursing team: Scrub nurses and surgical technicians are jointly responsible for the instrument and sponge counts
- The anesthesiologist: In some facilities, anesthesiologists participate in closing counts and share responsibility for flagging discrepancies
- The hospital or surgical facility: Hospitals are independently responsible for implementing and enforcing counting protocols, maintaining detection equipment, and creating a culture where any team member can raise a concern about an incorrect count without being pressured to continue anyway
Identifying every party responsible for what happened to you matters, not just for your recovery, but to make sure the system that failed you is held accountable so it does not fail the next patient.
What Compensation Can You Recover?
If a surgical instrument was left inside your body in Washington State, you may be entitled to compensation for:
- Corrective surgery: The cost of the procedure to remove the retained object and address any damage it caused
- Medical complications: Treatment for infections, abscesses, organ damage, or other harm caused by the retained object
- Lost wages: Income lost during additional recovery periods you never should have needed
- Pain and suffering: The physical pain, emotional distress, and anxiety of discovering what happened to you
- Future care costs: Ongoing treatment for any lasting effects of the retained object or its complications
Unlike many states that cap what a jury can award for pain and suffering, Washington repealed its limit on non-economic damages in 2023, meaning your compensation can now fully reflect the true impact this experience has had on your life.
Special Legal Protections for Retained Foreign Bodies
Under RCW 4.16.350, Washington’s general medical malpractice statute of limitations gives you three years from the date of the negligent act.
But retained foreign body cases have an important protection built into that same statute: the clock does not start running for these cases until you have actual knowledge that a foreign body is present in your body. Once you find out, you have one year from that date to file your claim.
Talk to Gilbert Law Firm About What Happened
If you found out a surgical instrument was left inside your body, you deserve a straight answer about your options. At Gilbert Law Firm, we will listen to your story, review what happened, and tell you honestly what we think. If we take your case, we do not let go.
Call us at (509) 321-0750 or send us a message to schedule a free consultation. No pressure, no obligation.
Frequently Asked Questions About Retained Surgical Instruments in Washington State
1. Is it always malpractice if a surgical instrument is left inside me?
In almost every case, yes. Retained surgical instruments are classified as a “never event,” meaning they should not occur when proper counting and detection protocols are followed. Under RCW 7.70.030, a malpractice claim requires proving the provider failed to follow the accepted standard of care and caused your injury. A retained instrument almost always satisfies both. Tell us what happened and we will give you an honest assessment.
2. What if I did not find out until years after my surgery?
You are protected by a specific provision in Washington’s malpractice statute under RCW 4.16.350 that tolls the statute of limitations for retained foreign bodies until you have actual knowledge of them. Once you find out, you have one year to file a malpractice claim. Contact Gilbert Law Firm as soon as you find out, even if you think it may be too late.
3. Do I need an expert witness to prove my case?
Possibly not for the negligence itself. Washington courts have recognized that retained surgical instruments may fall within the common knowledge exception, which means the error may be self-evident to a jury without medical expert testimony on the standard of care. Expert testimony on causation and damages is usually still needed.
4. Can I sue the hospital as well as the surgeon?
Yes. Hospitals have an independent obligation to implement and enforce surgical counting protocols and maintain detection equipment. If the hospital’s systems or culture contributed to the failure, the hospital shares liability. Multiple defendants are common in retained instrument cases, and identifying all of them is essential to a full recovery.
5. What if the hospital told me the object was always supposed to be there?
The legal distinction under Washington law is between items intentionally implanted for therapeutic purposes, like a pacemaker or surgical mesh, and items unintentionally left behind. If you were not told before surgery that a specific object would be left in place and it was not part of your treatment plan, it is almost certainly a retained foreign body. Bill Gilbert and the team at Gilbert Law Firm can help you sort through exactly what happened.
6. What if I am still dealing with health problems caused by the retained instrument?
Ongoing health consequences are a significant part of your claim. Future medical costs, continued pain and suffering, and any permanent effects of the retained object or its complications are all recoverable damages in Washington. Our duty to you is to make sure every element of your losses, not just what has happened so far, is accounted for in your case.
7. What should I do immediately after discovering a retained surgical instrument?
Request your complete surgical records right away, document your symptoms and timeline, and do not sign anything the hospital or its insurer puts in front of you before speaking with an attorney. Then reach out to Gilbert Law Firm. We will listen to your story and tell you honestly where things stand.