Reviewed By: The Spiros Law Team | Last Reviewed & Updated: September 16, 2026
A surgical sponge, instrument, needle, or other object should not be left inside a patient after surgery. When this happens, the patient may face pain, infection, additional surgery, and other complications.
Retained foreign object cases can also involve a legal doctrine called res ipsa loquitur. This doctrine may allow negligence to be inferred from the circumstances when certain legal requirements are met.
This guide explains retained foreign object claims and how res ipsa loquitur may apply under Illinois law.
Need a case review? Contact Spiros Law for a free, no-obligation consultation. Qualifying cases are handled on a contingency-fee basis, so you do not pay an attorney fee unless compensation is recovered.
What Is a Retained Foreign Object?
A retained foreign object is an item accidentally left inside a patient’s body after surgery or another invasive medical procedure.
Common examples include:
- Surgical sponges or gauze
- Clamps, forceps, or other surgical instruments
- Needles or needle fragments
- Guidewires
- Broken pieces of surgical equipment
- Retractors or other surgical tools
A retained surgical sponge is sometimes called a gossypiboma.
Symptoms of a Retained Surgical Object
Symptoms can vary depending on the object, its location, and how long it remains in the body.
Possible signs include:
- Ongoing or unexplained pain near the surgical site
- Fever or infection
- Swelling or a lump
- Bowel obstruction or digestive problems
- Abnormal imaging results
Some retained objects are discovered shortly after surgery. Others may not be found for months or years, including during imaging for an unrelated medical issue.
What Is Res Ipsa Loquitur?
Res ipsa loquitur is a Latin term that means “the thing speaks for itself.”
In Illinois medical malpractice cases, the doctrine may allow a plaintiff to rely on circumstantial evidence to establish an inference of negligence.
Generally, the plaintiff must show that:
- The injury is the type that ordinarily would not occur without negligence.
- The instrumentality that caused the injury was under the defendant’s control at the relevant time.
A retained surgical object may support a res ipsa loquitur argument because surgical teams generally have procedures for counting and accounting for instruments and sponges.
However, the doctrine does not automatically establish liability. Whether res ipsa loquitur applies depends on the specific facts and the legal requirements of the case.
Why Does Res Ipsa Loquitur Matter?
In some medical malpractice cases, it can be difficult to determine exactly how an error occurred or which individual made it.
A res ipsa loquitur claim may allow negligence to be inferred from the circumstances without requiring the patient to identify the exact mistake made by a particular member of the surgical team.
An Illinois medical malpractice attorney can review the medical records and circumstances to determine whether the doctrine may apply.
Who Can Be Held Liable for a Retained Object?
Because operating rooms involve multiple people and layers of protocol, liability in these cases can extend to more than just the lead surgeon:
- The operating surgeon, who bears ultimate responsibility for the surgical field
- Surgical nurses and scrub techs, who are typically responsible for counting sponges and instruments before and after the procedure
- The hospital or surgical center, which may be liable for inadequate counting protocols, understaffing, or systemic failures
- Assisting surgeons, in some multi-provider procedures
An experienced attorney will review operative records, nursing count sheets, and hospital protocols to determine which parties bear responsibility.
Proving a Retained Foreign Object Claim in Illinois
While res ipsa loquitur can ease the burden of proving exactly how the error occurred, your attorney will still typically need to establish:
- The object was in fact left inside the patient, confirmed through imaging, a follow-up surgery to remove it, or pathology findings.
- The object originated from the specific surgery in question, tying the object to a particular procedure and surgical team.
- Damages resulting from the retained object, including pain, infection, additional surgery, or other complications caused by its presence.
Illinois law still requires a written report from a qualified healthcare professional affirming a reasonable basis for the malpractice claim before a lawsuit can proceed, even in cases where res ipsa loquitur may apply.
Illinois Statute of Limitations for Retained Object Claims
- Adults: Generally 2 years from when the injury was discovered or reasonably should have been discovered, but no more than 4 years from the date of the surgery itself (735 ILCS 5/13-212).
- Minors: Generally 8 years from the date of injury, but no later than the child’s 22nd birthday.
The discovery rule can be important when a retained object is not identified until months or years after surgery. However, the filing deadline is not automatically based on the date the object is discovered in every case.
Because filing deadlines can be complicated, an attorney should review the specific facts as soon as possible.
What Compensation Can Cover
Depending on the circumstances, compensation may include:
- Costs of surgery to remove the object
- Treatment for infection or internal damage
- Additional medical expenses
- Lost wages
- Pain and suffering
- Loss of normal life
- Long-term damages from permanent injuries
The damages available depend on the facts of the case and applicable Illinois law.
Evidence That Strengthens a Retained Object Case
Important evidence may include:
- X-rays, CT scans, or other imaging
- The original operative report
- Surgical sponge and instrument count records
- Nursing records
- Follow-up surgical records
- Pathology or laboratory records
- Medical records documenting complications
- Hospital policies and procedures
- Review by qualified medical experts
These records can help establish when the object was retained, how it was discovered, what complications resulted, and whether the evidence supports a medical malpractice claim.
Why Choose Spiros Law for Your Illinois Retained Object Case
Spiros Law represents patients across Illinois in surgical error claims, including retained sponges, instruments, and other “never events.” We work with independent surgical and nursing experts to trace exactly how a hospital’s counting and verification protocols failed and to hold the responsible surgical team and facility accountable.
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Frequently Asked Questions
Do I have to prove exactly who left the object inside me?
Not always. In some Illinois medical malpractice cases, res ipsa loquitur may allow negligence to be inferred from the circumstances without identifying the specific individual who made the error.
The legal requirements must still be established, and the doctrine does not automatically prove liability.
Spiros Law can review the surgical records and determine whether the facts may support a retained foreign object claim.
How long after surgery can a retained object be discovered?
A retained object may be discovered days, months, or even years after surgery.
Some patients develop symptoms soon after the procedure. Others may discover the object during imaging for an unrelated condition.
Spiros Law can review when the object was discovered and the circumstances of the surgery to help determine whether an Illinois medical malpractice claim may be available.
Is the hospital or surgeon responsible for a retained sponge or instrument?
Potentially either, both, or another party. Responsibility depends on who was involved in the procedure and what caused the object to remain inside the patient.
Spiros Law can investigate the roles of the surgeon, surgical staff, hospital, and other providers involved in the procedure.
What if the retained object did not cause symptoms?
A retained object can still require medical evaluation or removal, even if it has not caused noticeable symptoms.
Whether a patient has a legal claim depends on the specific circumstances, including whether negligence occurred and whether the patient suffered legally compensable damages.
Spiros Law can review the medical records and circumstances to determine whether the facts support a claim.
Do I need money upfront to hire a retained object malpractice lawyer?
No. Spiros Law handles qualifying retained foreign object cases on a contingency-fee basis. There are no upfront attorney fees, and you do not pay an attorney fee unless compensation is recovered for you or your family.
Sources
Sources & Legal Authority
- 735 ILCS 5/2-1113 — Illinois Code of Civil Procedure (Res Ipsa Loquitur in Medical Malpractice Actions): Governs how Illinois courts evaluate whether an inference of negligence applies when an injury is of a nature that ordinarily does not occur without negligence.
- 735 ILCS 5/13-212 — Illinois Code of Civil Procedure (Physician or Hospital Actions; Statute of Limitations & Discovery Rule): Defines the standard 2-year discovery limitation period, the 4-year statute of repose, and exceptions for minors.
- 735 ILCS 5/2-622 — Illinois Healing Art Malpractice (Certificate of Merit): Establishes the prerequisite for filing an attorney affidavit and reviewing physician’s written report, even when pursuing claims under res ipsa loquitur.
- Association of periOperative Registered Nurses (AORN) — Guideline for Prevention of Retained Surgical Items: National standard protocols governing mandatory surgical sponge, sharp, and instrument count procedures before, during, and after operations.
- National Quality Forum (NQF) — Serious Reportable Events in Healthcare: Classifies unintended retained foreign bodies post-surgery as preventable “Never Events.”
Disclaimer: This article is for informational purposes only and does not constitute legal or medical advice. Every case is unique; consult a licensed Illinois attorney to evaluate your specific situation.
