Medical negligence claims when objects are left in patients after surgery

When I tell people that I am a medical negligence lawyer, one of the most common questions that people have is about one of the rarest events in medical negligence law: “Do you ever see cases where the surgeon has left scissors in the patient?”

A gruesome question with an answer that’s less exciting: “Medical staff do occasionally leave items in patients in error, but thankfully this is much less common than people imagine”.

A recent study from the UK has me re-thinking my response.

A recent report found that in 2021-22, 291 hospital patients in the UK had surgical devices left inside them after surgery. It was the highest recorded total in over 20 years.

From gauze pads, to swabs, to drill bits and other surgical devices – an array of items were left in unsuspecting patients who might not discover the problem until weeks or months after the procedure.

So why might this report be good news, and why should Victorian patients be concerned?

Retained items in a patient after surgery is a very serious issue. In the UK, it is considered a “never event” meaning that it is one of a number of medical events which should simply never occur. In Australia, it is one of 11 categories of “sentinel events”.

Sentinel events occur because of “hospital system and process deficiencies, and which result in the death of, or serious harm to, a patient”. These are errors which health providers must report, and which have the potential to undermine confidence of the public in the healthcare system.

You can read more about sentinel events in our earlier article, “Sentinel Events in Victoria – The 3 Most Common Medical Errors”.

The most recent data available which allows a comparison to the UK report is from Safer Care Victoria, and deals with patient safety events from 2021.

In the Safer Care Report, it notes that in Victoria in that year, there were a total of 168 “sentinel events” and of those, there were 2 cases of surgical devices being left in patients accidentally.

If the UK’s population were the same as Victoria, the data shows that there would have been 28 instances of retained surgical devices (rather than the 291 referenced in the UK report).

Which leads us to some concerning questions:

• Are you 10 times less likely to have a surgeon leave something inside you during surgery in Victoria?
• Or is it just that Victorian health providers are 10 times less likely to raise the alarm when something like this occurs?
• In which case, are there 26 Victorian patients a year with retained surgical devices that health authorities are unaware of?

In Australia, data about patient safety is fragmented and siloed, to the detriment of patients and the people who care for them.

Safer Care Victoria reports that more sentinel event notifications are occurring, indicating steadily improved reporting culture within health services.

However, the increase in reporting of sentinel events could relate to either better reporting culture in hospitals (which would be welcome), or a real increase in the number of sentinel events (which, if not detected and addressed, could be a disaster).

Without better health data we are left in the scary situation of not being able to address what may be a significant patient safety concern.

While as lawyers we are aware that cases involving retained items do occur, there is no firm data on how many legal cases of medical negligence per year are brought by injured patients in Australia.

Very few medical negligence cases are heard by Victorian Courts each year, with the vast majority settling (out of Court) or being withdrawn before a Court hearing. Those cases that are heard by a Judge or a jury tend to be complex cases where the facts and the evidence are hotly disputed.

While there are very few medical negligence cases where an injured Plaintiff is certain to succeed, it’s hard to imagine a stronger claim for compensation than surgical items being left in a patient (assuming that the patient can demonstrate that they have suffered a significant injury in order to access compensation for pain and suffering damages).

In my experience, health providers, their insurers and lawyers are generally very eager to negotiate compensation settlements in cases involving retained objects to ensure that the error is not pored over by a Court (and by journalists and members of the public watching a Court proceeding).

As a result, Victorian Courts rarely hear cases involving items left in patients after surgery.

On those rare occasions where a Court hearing is necessary, it is usually because of a dispute between the surgeon and nursing/theatre staff about who was ultimately responsible.
A traditional starting point has been for Courts to consider that in a surgical procedure, the surgeon is “the captain of the ship”. However, that analogy has been more recently rejected and described as unhelpful by judges in several jurisdictions.

One of the key cases in Australia examining this issue shows that the captain relies on the reasonable performance of independent tasks, as well as clear communication by theatre staff. It also reminds us that even apparently straightforward and very simple medical negligence cases can fail to deliver compensation to a patient if they are not properly advised and legally represented.

In the Australian case of Elliot v Bickerstaff, a surgical sponge was left in a patient during a hysterectomy performed by a specialist surgeon in a private hospital. The surgeon was assisted by staff of the hospital in the operating theatre.

It was alleged that the error occurred when nurses miscounted the number of sponges which had been used in the surgery, and that they told the surgeon that all of the sponges had been removed at the end of the surgery.

The patient sued the surgeon, but not the hospital (who was legally liable for the actions of its employees).

The NSW Court of Appeal ultimately determined that the hospital was negligent due to the failing of its staff to keep a proper count of the sponges used in the procedure.

Because the lawyers for the injured patient had brought a claim against the surgeon only, the patient was unable to obtain compensation for her injuries, which the Court found had in fact been caused by the negligence of the hospital.

Injured patients deserve to be protected by systems that that can continually improve by using data collected and published in a timely way. In the meantime, we are left with anecdotal accounts from the legal system about how often items are left in patients after surgery. These cases, while generally very strong for an injured person seeking damages, still contain traps and pitfalls requiring expert legal advice from lawyers who specialise in the area of medical negligence.