What are my rights if a surgical instrument was left inside my body?

· 3 min read

A sponge, clamp, or other item left inside a patient after surgery is treated as a serious surgical error under Georgia law, and the patient generally has the right to pursue a medical malpractice claim for the resulting harm. These retained-object cases are distinctive because the error is concrete and the standard meant to prevent it is well established.

A recognized category of preventable error

Leaving a foreign object behind is widely regarded as a “never event,” meaning it should not occur when accepted surgical safeguards are followed. Hospitals use instrument and sponge counts before closing an incision precisely to catch these items. When the count fails or is skipped and an object remains, the deviation from the standard of care is usually apparent, and the patient often suffers infection, pain, or the need for additional surgery to remove it.

What a Georgia claim requires

The case proceeds as a medical malpractice action, so the standard elements apply: a breach of the accepted standard of care and harm caused by that breach. To open such a suit, O.C.G.A. § 9-11-9.1 obliges the patient to file a supporting affidavit from an expert who pinpoints the negligent act or omission. Even though a retained instrument may seem self-evident, expert testimony typically still explains how the counting protocol was violated and how the object caused the patient’s injuries.

Responsibility may rest with more than one participant. Depending on who performed the count and managed the surgical field, fault could extend to the surgeon, surgical nurses, or the facility, and a hospital may be liable for the negligence of its employees. When several people share the surgical field, O.C.G.A. § 51-12-33 permits the jury to apportion responsibility across each of them by percentage.

Timing and the discovery problem

While O.C.G.A. § 9-3-71 sets the general malpractice clock at two years to sue with a five-year repose cutoff, retained surgical objects fall under a separate rule. O.C.G.A. § 9-3-72 carves out foreign objects left in the body, giving a one-year window that runs from when the object is discovered or, with ordinary diligence, should have been discovered. That statute displaces both the two-year limitation and the five-year repose, which matters because a sponge or instrument may go undetected until symptoms surface years later. The statute also defines what counts: a chemical compound, fixation device, or prosthetic aid does not qualify as a foreign object under this section.

Recoverable harm may include the consequences of the retained object, removal surgery, and related losses. A patient’s compensation for pain and similar non-economic harm rides on no statutory cap, the result the Georgia Supreme Court reached in Atlanta Oculoplastic Surgery v. Nestlehutt.

The bottom line

A retained surgical instrument generally gives a patient the right to bring a Georgia malpractice claim, supported by an expert affidavit. Because discovery may come years later, confirming how the filing deadlines apply to the specific situation is important.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

Related:

  1. Does Georgia law treat a bicycle as a vehicle with the same road rights? Georgia law gives a person riding a bicycle on the roadway the same rights as the driver of a vehicle, along with the same duties. A cyclist is a legitimate......
  2. What are my rights if I slipped on spilled liquid in a Georgia retail aisle? A shopper hurt by spilled liquid in a Georgia retail aisle has the right to pursue a premises-liability claim if the store failed to use ordinary care. That right is......
  3. What legal rights does a nursing-home resident have under Georgia law? Georgia gives long-term care residents a defined set of protections through a dedicated statute, the Bill of Rights for Residents of Long-Term Care Facilities, O.C.G.A. § 31-8-100 and following. These......
  4. Do adopted children have the same wrongful death rights as biological children in Georgia? An adopted child stands in the same legal position as a biological child when a Georgia parent dies wrongfully. A completed adoption creates a full legal parent-child relationship, and the......
  5. What does a reservation-of-rights letter from my Georgia insurer mean? A reservation-of-rights letter is an insurer's written notice that it will look into a claim and may provide a defense, while preserving the option to deny coverage later if it......
  6. Can I sue if a known surgical risk was never explained before my procedure? If a recognized risk of surgery was never disclosed and that risk then materialized, Georgia law may allow an informed-consent claim. This kind of case does not depend on the......
  7. Can a late-discovered surgical mistake still be sued after 5 years in Georgia? For most surgical errors, the answer is no. Georgia's five-year statute of repose generally closes the door on a malpractice claim once five years pass from the negligent act, even......
  8. Can I recover for personal belongings damaged inside my car in a crash? Items destroyed inside the vehicle are a separate kind of loss from the car itself, and they are generally recoverable when a negligent driver caused the collision. A laptop, phone,......
  9. Does the tenant or the landlord answer for a hazard inside a leased Georgia home? The answer is a sorting question, not a single rule: the analysis starts with the hazard itself and traces it to whoever controlled the condition that caused it. Georgia routes......
  10. When is a Georgia landlord liable for an injury that happens inside a rented unit? A Georgia landlord's responsibility for an injury inside a leased unit is narrower than many tenants expect, because the law shifts day-to-day control of the premises to the tenant. Liability......
  11. Is there an exception to the repose period for a sponge left inside me? A surgical sponge left in the body is the classic example that Georgia's foreign-object rule was written to address. Unlike most malpractice claims, a qualifying foreign-object case is not measured......
  12. Can I sue the maker of one defective component inside a larger product in Georgia? The company that made a single defective part inside a larger product can be a proper defendant in Georgia. A component maker is the manufacturer of its own part, and......

Leave a Reply