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Retained Foreign Object Malpractice in Florida
Retained foreign objects (RFOs) in patients such as surgical sponges, instruments, or other tools inadvertently left inside the body are considered “never events” in healthcare. Unfortunately, they still occur with surprising frequency. Nationwide, estimates suggest RFO incidents happen in about 1 in 5,500 surgeries, and Florida’s high surgical volume means roughly 400 such cases annually.
These mistakes can lead to severe infections, chronic pain, or the need for additional surgeries, with a significant share resulting in serious harm or even death. Florida law recognizes the gravity of retained object errors and has specific rules that affect how malpractice claims are handled.
This article provides a comprehensive overview of RFO malpractice in Florida, including the state’s presumption of negligence for RFOs, pre suit and expert witness requirements, the status of damage caps, special considerations for emergency or non surgical situations, and the challenges of proving causation.
Presumption of Negligence for Retained Objects in Florida
Under Florida law, the discovery of a foreign object left inside a patient creates a legal presumption of negligence on the part of the healthcare provider. In other words, an RFO essentially “speaks for itself” as an error that ordinarily would not happen without negligence. Florida Statutes §766.102 explicitly provides that “the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia… shall be prima facie evidence of negligence on the part of the health care provider.”
This presumption shifts the burden to the defendant (the doctor or hospital) to rebut the inference of negligence. In a typical malpractice case the patient must prove the provider breached the standard of care, but in an RFO case the law imposes an initial inference that a breach occurred. Essentially, the onus is on the provider to show that they were not negligent in leaving the item behind.
Florida courts have long echoed this principle through the doctrine of res ipsa loquitur (“the thing speaks for itself”). As far back as 1934, the Florida Supreme Court held it is negligence per se for a surgeon to leave a sponge in a patient, and “the burden of showing due care is upon a surgeon who leaves a sponge… after an operation.”
The surgeon cannot escape liability for a retained sponge unless he proves that “the sponge was so concealed that reasonable care… would not have disclosed it,” or that urgent conditions made a thorough search impossible.
For example, if a patient’s condition is critical and an emergency closure is necessary, failing to remove a sponge might be deemed an “accidental and excusable” lapse rather than actionable negligence but it is the physician’s burden to convince the jury that the life threatening emergency made the lapse non negligent.
Outside of such extreme circumstances, a retained object is almost automatically considered a breach of the standard of care in Florida.
Importantly, even though negligence is presumed in RFO cases, healthcare providers do have an opportunity to defend themselves by proving they adhered to the standard of care. If a provider can show they took all appropriate precautions (for instance, conducting multiple sponge counts, using X rays to search for missing tools, etc.), a jury might find the presumption of negligence adequately rebutted. In one illustrative case, a surgeon halted surgery when a sponge count was off, ordered an X ray which initially showed nothing, and proceeded only after these reasonable checks.
When a retained sponge was discovered and the patient sued, the surgeon presented expert testimony that his actions met every protocol and that continuing to search further during the operation could have harmed the patient.
In the end, the surgeon produced sufficient evidence to prove he was not negligent in leaving the sponge. This example underscores that while the law is stacked against a defendant in RFO scenarios, a diligent provider can avoid liability if they convincingly demonstrate that the mistake occurred despite exercising proper care.
Pre Suit Investigation and Expert Witness Requirements
Florida has one of the most demanding pre suit processes for medical malpractice claims in the country, and RFO cases are no exception. Even if you have a clear cut retained object case, you must strictly follow Florida’s pre suit investigation requirements, or your claim can be dismissed on procedural grounds. Notably, Florida law requires obtaining a corroborating medical expert opinion before you may file a malpractice lawsuit.
The injured patient (through counsel) must retain a qualified expert witness generally a healthcare provider in the same specialty as the defendant to review the facts and sign a sworn affidavit that the claim has merit.
This expert must attest that the provider “failed to meet the standard of care” and that this failure resulted in harm to the patient. The necessity of an expert applies even in a retained object case where negligence seems obvious. In other words, the statutory presumption of negligence does not waive the expert requirement. A cautionary example is Archer v. Maddux, in which a Florida surgeon accidentally left a tube in a patient.
The patient’s lawsuit was thrown out because no expert affidavit had been filed before the statute of limitations expired, and the dismissal was upheld on appeal. This shows that failing to secure a timely expert opinion can doom an RFO claim, despite the favorable burden shifting on negligence.
The pre suit process begins with a Notice of Intent to Initiate Litigation, a formal letter to each prospective defendant giving at least 90 days’ notice before a suit can be filed. Florida Statutes §766.106 and related provisions spell out in detail what this notice must contain. In essence, the notice package must include:
A summary of the alleged negligence and injuries: a concise description of what went wrong (e.g. “surgeon left a sponge in plaintiff’s abdomen during gallbladder surgery”) and the harm it caused.
A verified medical expert opinion: the sworn statement of a medical expert (as described above) certifying that reasonable grounds exist to believe negligence occurred and caused injury. Florida law requires this expert to have qualifications very similar to the defendant (usually the same specialty and recent clinical experience).
List of other healthcare providers: a list of all providers the patient saw for the injuries after the incident, and providers seen in the two years prior, to give the defendant background on the patient’s medical context.
Relevant medical records: copies of the medical records and reports that the claimant and their expert relied on in formulating the case.
HIPAA authorization: a signed HIPAA compliant release allowing the defendant to obtain the patient’s medical records. (Notably, if the patient revokes this authorization, it voids the notice and tolling of the limitations period.)
Once the Notice of Intent is served, a 90 day pre suit investigative period begins. During this time, the defendant (and their insurer) will conduct an internal review of the claim’s merits, and both sides may engage in informal discovery. This can include exchanging additional medical information, taking unsworn statements, or discussions between experts.
The idea is to give both parties a chance to evaluate the case without immediate litigation pressure. By the end of the 90 days, the prospective defendant must respond in one of three ways: reject the claim, offer a settlement, or admit liability and seek arbitration on damages. If the claim is rejected or no response is given, the plaintiff may then proceed to file a lawsuit in court. Many cases are resolved in this pre suit phase via settlements; if not, the plaintiff can formally sue after complying with these steps.
Because of these strict pre suit rules, it’s crucial for potential litigants to act promptly after discovering a retained object and to involve an experienced Florida malpractice attorney early. The attorney will secure the required expert review and navigate the notice process so that the case isn’t lost on a technicality.
Keep in mind that Florida’s statute of limitations for malpractice is generally two years from when the patient discovered (or should have discovered) the injury. (RFOs are often discovered well after the surgery; Florida law will typically consider the clock to start at the time of discovery of the foreign object, not the date of the surgery, but there is also an outer “repose” deadline of four years in most cases, or up to seven years if there was concealment of the negligence.) Given these time limits, the pre suit investigation must be initiated as soon as feasible once you learn about the retained object.
Finally, note that expert testimony will also be needed at trial, not just at the pre suit stage. Even with the foreign object negligence presumption, you will want a qualified expert to explain how the standard of care was breached (e.g. how proper sponge counts or imaging should have prevented the error) and to establish the link between that negligence and your injuries. Florida law tightly regulates who may serve as an expert witness: if the defendant is a specialist, your expert generally must specialize in the same field and have been in active practice or teaching in that specialty within the past 3 years.
This “same specialty” rule is another hurdle to be aware of it prevents, say, a general surgeon from testifying about a neurosurgeon’s mistake. Your attorney will need to find a well credentialed expert in the appropriate field to support your claim both in the pre suit affidavit and, if the case goes forward, in deposition and trial.
Special Scenarios: Emergency Surgeries and Non Surgical Procedures
Emergency surgery situations present a nuanced wrinkle in RFO cases. As mentioned, Florida case law recognizes that in a dire emergency, a surgeon’s foremost duty is to save the patient’s life or prevent grave harm even if that means speed is prioritized over absolute thoroughness.
In Smith v. Zeagler, the court noted that when a patient’s condition is critical and “the paramount requirement is [to] complete the operation in the shortest possible time,” a retained sponge might be considered an “accidental and excusable” lapse rather than negligence. The surgeon must show that performing a meticulous search for the missing item would have unduly endangered the patient under the circumstances.
In practical terms, this could apply if, for example, the patient was on the verge of cardiac arrest on the table and the team had to close up rapidly. The burden is on the physician to prove that the emergency justified the oversight. Florida also has statutory protections for providers rendering emergency care.
Under current law, if you are treated in a hospital emergency department or in an urgent trauma situation, the standard for malpractice liability is raised a provider can only be held liable if their conduct was grossly negligent or showed reckless disregard for life (a higher bar than ordinary negligence).
This means that in an emergency surgery context, a retained instrument case might require proving more egregious fault than in a planned operation. Bottom line: while a retained object is normally strong evidence of negligence, a doctor may avoid liability if extraordinary emergency conditions made the mishap essentially unavoidable.
It’s worth noting that RFO cases are not confined to surgeons in operating rooms. Non surgical healthcare providers can also be on the hook for foreign objects left in a patient. Florida’s foreign object negligence presumption applies to any “sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures” discovered in a patient. That means even outside the OR, if a healthcare professional leaves something behind during a procedure, the presumption arises.
For instance, a radiologist could negligently leave a guidewire or catheter fragment in a blood vessel during an interventional procedure, or a dentist might break off a drill bit or tool that remains embedded in the patient. These scenarios fall under malpractice as well and the law “could apply equally to a nurse practitioner’s leaving a broken needle in a patient or a dentist’s leaving a burr or broken probe in a patient,” not just surgeons.
The same burden shifting principle would put the onus on those practitioners to prove they weren’t negligent. Additionally, hospitals typically have protocols making it a team responsibility (surgeons, nurses, surgical techs, etc.) to account for all tools and materials during procedures. So, in a lawsuit, both the individual doctor and possibly the hospital (for staff failures or systemic issues) might be named as defendants.
In summary, whether the retained object came from an emergency surgery or a routine procedure by any provider, Florida law strongly favors the injured patient initially. The context (emergency vs. non emergency) will influence how the defense can argue the case, but the presence of an unintended object inside a patient is prima facie negligence across the board. Patients should be aware, though, that doctors and hospitals may invoke these nuances e.g. “it was a life or death situation” or “this was a known rare complication, not negligence” to fight the claim. Each case’s specific facts will matter in evaluating those defenses.
Proving Causation and Overcoming Defense Arguments
Proving causation is a critical element of any malpractice case, including RFO cases. It is not enough to show that a foreign object was left inside you; you must also demonstrate that this negligence resulted in harm. Florida statute §766.102 emphasizes that a claimant “must maintain the burden of proving that an injury was proximately caused by” the provider’s breach of the standard of care. In practical terms, this means you need to link the retained object to specific injuries, complications, or losses you suffered. In many RFO cases, causation is straightforward the foreign item causes an infection, internal damage, or necessitates an additional surgery to remove it, all of which clearly are direct consequences.
The complications from retained sponges or instruments can indeed be severe: common outcomes include major infections, abscesses, pain, intestinal perforation or obstruction, the formation of scar tissue (adhesions), and psychological trauma. Often a second surgery is required to retrieve the object, bringing its own risks of anesthesia and recovery. These are tangible injuries that support a claim for damages.
However, causation can sometimes be contested, and it’s an area where defense lawyers may seize upon any uncertainty. For example, if a sponge was left but discovered relatively soon and removed without incident, the defense might argue that the patient suffered no lasting harm (or only minimal issues) from the event. In other cases, a patient’s subsequent medical problems might be attributable to other underlying conditions rather than the foreign object.
In the case story of the hip surgery patient with a retained sponge, the patient later developed congestive heart failure and tried to attribute it partly to the additional surgery/anesthesia but he had a heavy smoking history, and even he admitted his doctors said smoking was the more likely cause of his heart issues.
This illustrates how the defense will attempt to decouple the negligence from the damages, claiming that some or all of the problems aren’t due to the malpractice. As a plaintiff, you will need medical evidence and expert support to refute such claims and to clearly tie your injuries to the retained object incident.
One hurdle unique to RFO cases is the occasional argument by hospitals that a retained sponge or tool is an “accepted risk” of surgery essentially suggesting that because such errors, though rare, can happen even with care, the event alone shouldn’t be considered negligence. Florida plaintiffs must push back against this notion by highlighting that RFOs are preventable in virtually all cases with proper protocols. Indeed, RFOs are classified as “never events” precisely because they are not an acceptable risk if standard safety measures (like sponge counts and surgical checklists) are followed.
In a recent Florida trial involving a retained sponge, the hospital contended it was just an unfortunate risk of surgery, but the plaintiff overcame this defense by proving a clear breach of protocol nurses testified that proper sponge counts were not done and state mandated procedures were violated. The plaintiff’s legal team showed that Florida’s rules (such as requiring multiple independent counts and immediate investigation of any discrepancy) were not adhered to.
This kind of evidence, combined with expert testimony that such errors do not occur absent negligence, effectively dismantles the “accepted risk” argument. The takeaway for injured patients is that you should be prepared to demonstrate how the mistake happened for instance, was there a breakdown in communication in the operating room, understaffing, a failure to follow counting protocols, etc. to reinforce the causal link between the provider’s lapse and your injury.
In building the causation case, your expert witness will play a pivotal role. The expert can explain the medical consequences of having a sponge or instrument left inside (for example, how it caused an infection or additional surgery) and can rule out alternative causes proposed by the defense. Additionally, if a defendant tries to argue they did nothing wrong (despite the presumption), your expert can testify that under accepted medical standards, there truly is no excuse for the error barring extraordinary circumstances. Florida juries tend to be persuaded by concrete, factual narratives of causation e.g. “But for the sponge being left in her abdomen, Mrs. Doe would not have developed sepsis and needed a second surgery; the sponge caused an abscess which led to these damages.” Meticulous medical records and testimony linking the timeline of symptoms to the retained object will firm up this element of the case.
Damages in RFO cases typically include:
Economic damages: such as the cost of any additional surgeries or medical care required to remove the object and treat complications, as well as lost income if the patient missed work during recovery. These are quantifiable financial losses.
Non economic damages: for pain and suffering, mental anguish, trauma, or loss of quality of life resulting from the ordeal. Enduring a preventable second surgery or a severe infection can be a harrowing experience, and Florida law allows patients to seek compensation for these intangible harms.
In egregious cases, if the conduct was grossly negligent or there was an element of concealment, punitive damages might even be considered though in a typical RFO scenario, unless the providers tried to cover up the mistake or showed a willful disregard of patient safety, punitive damages are uncommon.
No Caps on Non Economic Damages (Florida’s Overturned Damage Caps)
One crucial point for potential litigants to understand is that Florida currently has no legal cap on non economic damages in medical malpractice cases. Non economic damages include awards for pain, suffering, emotional distress, and other intangible losses. Florida did have a statute that capped non economic damages (generally at $500,000 per claimant in med mal cases, with some higher exceptions) as part of a 2003 tort reform law, but those caps have been invalidated by the courts. In Estate of McCall v. United States (2014) and later North Broward Hospital District v. Kalitan (2017), the Florida Supreme Court struck down the malpractice damage caps as unconstitutional. The court found that limiting a victim’s recovery for pain and suffering violated the Equal Protection clause of the state constitution, especially since the cap was arbitrary and did not account for the severity of the injury. Following Kalitan in 2017, the statutory caps on non economic damages can no longer be enforced in Florida malpractice cases.
This is very good news for plaintiffs in retained object cases, because such cases often involve significant non economic harm. The physical pain, trauma of additional procedures, and emotional distress of knowing a surgical mistake happened can be substantial. Now, a jury can award whatever amount in non economic damages they deem appropriate to fairly compensate the victim, without being forced to chop the award down to an artificial limit.
For example, if a jury awards $1 million for pain and suffering to someone who endured multiple surgeries and lifelong complications from a retained instrument, that full amount is recoverable it won’t be capped at $500k as it would have been in the past. It’s important to note that while the statute capping damages (Fla. Stat. §766.118) may still literally be “on the books,” it is a dead letter after the Supreme Court rulings.
Attorneys and courts now operate under the understanding that no cap applies to non economic damages in any malpractice case arising after those decisions. (Economic damages were never capped in Florida, and punitive damages have their own separate caps, but those are not usually central in RFO cases.)
Prospective plaintiffs should also be aware that if a case goes to voluntary binding arbitration a process Florida law encourages as a way to potentially limit litigation costs there are different caps that can come into play (for instance, a lower cap on non economic damages if the doctor concedes liability and both sides agree to arbitrate damages).
However, entering arbitration is a choice and typically involves trade offs. In standard court litigation, you are not constrained by arbitrary damage ceilings for your pain and suffering. This makes it all the more vital to thoroughly document and present evidence of your non economic harms. Personal diaries of pain, testimony from family about your emotional struggles, and evaluations by mental health professionals (if relevant) can bolster the case for a substantial non economic damage award.
Given that Florida juries now have full discretion, painting a compelling picture of how the retained object ordeal affected your life will help ensure you receive fair compensation for those intangible losses.
Conclusion
For Floridians dealing with the fallout of a retained surgical item, it’s important to recognize that the law is largely on your side, but there are procedural and evidentiary hoops to jump through. The presence of a foreign object in your body is strong prima facie proof of malpractice in Florida, eliminating the need to prove negligence from scratch.
Nonetheless, you’ll need a qualified expert to back up your claim and must navigate the state’s rigorous pre suit process to even get your case off the ground. Be mindful of special circumstances if your situation involved an emergency surgery, expect the defense to argue the complication was unavoidable, and be prepared to counter that if evidence suggests otherwise. Remember that not only surgeons, but any healthcare provider who leaves a tool or device inside a patient, can be held accountable under these rules.
Causation and damages are where your battle will be won or lost. You must clearly link the retained object to the harm you suffered and overcome any alternative explanations the defense might float. Fortunately, many RFO cases involve obvious cause and effect (e.g. object causes infection and pain requiring intervention), but do not overlook the need to prove this element with solid medical evidence.
On the damages front, Florida now allows full recovery of pain and suffering losses without statutory caps, thanks to the overturning of those limits. This means a patient harmed by a never event like a retained sponge can seek the full measure of compensation for both economic costs and life altering non economic injuries.
If you believe you’re a victim of a retained foreign object incident, consult an experienced Florida medical malpractice attorney as soon as possible.
They can ensure compliance with all pre suit requirements, help obtain a supportive expert review, and effectively marshal the facts to meet the causation and damages challenges.
While RFO malpractice cases in Florida have their complexities, understanding these key points the burden shifting presumption of negligence, the need for expert support despite that presumption, the specifics of the pre suit procedure, special rules for emergencies, and the current landscape on damages is crucial.
Armed with this knowledge, a potential litigant is better positioned to seek justice and fair restitution for an injury that should never have happened in the first place.
Attorney Bio: Jorge L. Flores, Florida Bar No. 53244, has been representing families in Miami Dade for over 30 years.
Disclaimer: This overview is general information, not legal advice. Deadlines and procedures can change based on facts and parties. For guidance on your specific situation, contact a Florida medical malpractice attorney.