Retained Surgical Objects in Florida: When a Sponge or Instrument Is Left Behind

Hospitals count every sponge, needle, and instrument before and after an operation for one reason: things get left behind. A retained surgical item is one of the clearest examples of a preventable medical error. Patients often learn of it weeks or months later, after unexplained pain, infection, or a bowel obstruction leads to imaging that shows a sponge or instrument where it should not be. Florida law treats these cases differently from other malpractice claims, and in the patient’s favor.

What Florida Law Says

Most medical malpractice cases require the patient to prove, through expert testimony, that the provider fell below the prevailing professional standard of care. Retained objects are an exception. Under section 766.102(3)(b), Florida Statutes, the discovery of a foreign body such as a sponge, clamp, forceps, surgical needle, or other item commonly used in surgical, examination, or diagnostic procedures is prima facie evidence of negligence on the part of the health care provider. In plain terms, the law presumes that leaving the object behind was negligent, and the burden shifts to the provider to explain it.

That presumption does not end the case. The patient still must show the harm the object caused, and the provider may argue about which member of the surgical team was responsible. But it removes the hardest part of most malpractice claims.

Who Is Responsible

The surgeon, the scrub nurse and circulating nurse who perform the counts, and the hospital or surgical center that employs them and sets the counting procedures can all share responsibility. Surgeons are often independent contractors rather than hospital employees, which affects which insurance applies. Several of South Florida’s largest hospital systems, including Broward Health, Memorial Healthcare System, and Jackson Health System, are public entities, and claims against them follow Florida’s sovereign immunity rules in section 768.28, including special notice requirements and damage limits.

The Harm

A retained object can cause infection and abscess, sepsis, bowel perforation or obstruction, adhesions, chronic pain, and the need for additional surgery to remove it. The cost of that second surgery, the lost time from work, and the lasting effects are all part of the claim.

Deadlines

Florida’s medical malpractice deadline is generally two years from when the injury was discovered or should have been discovered, and no more than four years from the incident. Where the provider concealed the error, the period can extend to seven years (section 95.11(4)(b)). Before filing suit, Florida requires an expert’s written opinion and a 90-day presuit investigation period (section 766.106).

What to Do

1. Get the imaging report and operative record showing the object and the original surgery.
2. Request the surgical count records from the facility.
3. Keep every bill and record from the removal surgery and follow-up care.
4. Contact a lawyer before the two-year clock runs.

How The Injury Advocates Can Help

We handle surgical error and other medical malpractice cases across Broward, Miami-Dade, and Palm Beach counties, and we work with qualified medical experts on every case. Your consultation is free, and you owe no fees or costs unless we win.

Frequently Asked Questions

Do I need an expert to prove a retained sponge case?

Florida still requires an expert’s presuit opinion to file any malpractice claim, but under section 766.102(3)(b) the retained object itself is prima facie evidence of negligence, which makes these cases stronger than most.

How long do I have?

Generally two years from when you discovered or should have discovered the injury, and no more than four years from the surgery, extended to seven if the error was concealed.

Who do I sue?

Potentially the surgeon, the nursing staff responsible for counts, and the hospital or surgical center, depending on employment and the facts.

Related: Learn more about our surgical error practice.