Retained Surgical Objects Brain Injury NY: Legal Rights and Compensation

When surgical teams complete a brain operation, nothing should remain in the patient’s skull except healing tissue. Yet hundreds of times each year across the United States, surgeons accidentally leave behind cotton balls, surgical sponges, instruments, or other objects in patients’ brains. These “never events” trigger potentially devastating brain injury complications requiring emergency reoperation, and they represent clear medical negligence under New York law.

If you or a loved one suffered complications from a retained surgical object following brain surgery, you may have grounds for a medical malpractice claim. New York law provides specific protections for victims of retained foreign objects, including extended statute of limitations provisions that recognize these injuries often go undetected for months or years after the initial surgery.

What Are Retained Surgical Objects in Brain Surgery?

Retained surgical objects, also called retained surgical items (RSIs) or retained foreign bodies, are materials or instruments accidentally left inside a patient during a surgical procedure. These never events represent serious surgical errors that should never occur in properly conducted brain surgery. In brain surgery, the most common retained objects include:

• Cotton balls (cottonoids) used to absorb blood
• Surgical sponges (neurosurgical patties)
• Instrument fragments or broken pieces
• Guidewires
• Needle fragments
• Clips or clamps

According to The Joint Commission’s 2023 Sentinel Event Data, unintended retention of foreign objects represented 8% of all reported sentinel events in 2023, with surgical sponges accounting for 35% of retained items, guidewires 10%, and instrument fragments 8%.

Why Cotton Balls Are Especially Problematic in Neurosurgery

Brain surgery presents unique challenges that make retained objects more likely compared to other surgical procedures. During a craniotomy, surgeons may use hundreds of cotton balls to clear their field of view. These small objects serve a critical function—absorbing blood to maintain visibility—but create significant retention risks:

• Visual similarity: Blood-soaked cotton balls look remarkably similar to raw brain tissue, making them difficult to distinguish visually
• Small size: Cotton balls are approximately 10mm in diameter, easy to overlook
• Manual counting: Nurses must count each cotton ball as it enters and exits the surgical site, a process prone to human error
• Customization: Surgeons reshape cotton pieces for multiple uses, further complicating accurate counts
• Fragmentation: Cotton balls may tear, leaving behind small strips that escape detection
• No reliable detection: Currently, no imaging modality can reliably detect retained cotton balls before surgical closure

How Common Are Retained Surgical Objects in Brain Surgery?

Retained surgical items occur across all surgical specialties, though rates vary by procedure type. A comprehensive 2025 study analyzing 198,619,904 surgeries from 2016 to 2023 found an overall RSI incidence rate of 1.34 per 10,000 surgeries. The incidence declined over the study period, from 1.63 per 10,000 surgeries in 2016 to 1.08 per 10,000 surgeries in 2023.

While this represents progress, retained foreign objects remain unacceptably common. The Joint Commission reported that unintended retention of foreign objects increased by 11% from 2022 to 2023, and more incidents were reported in 2024 than in any of the previous four years.

Medical Complications of Retained Objects in the Brain

When surgical materials remain in the brain after closure, they trigger two primary types of foreign-body reactions, both requiring medical intervention:

Aseptic Fibrous Reactions

The first reaction type involves the body attempting to isolate the foreign material through:

• Adhesion formation around the retained object
• Encapsulation by scar tissue
• Granulomatous pseudotumoral formation (gossypiboma or textiloma)

These masses can appear on imaging studies as brain tumors, leading to misdiagnosis and inappropriate treatment. The granulomas may compress surrounding brain tissue, causing progressive neurological deficits.

Exudative Reactions and Infection

The second reaction type involves infection and abscess formation, potentially causing:

• Meningitis or brain abscess
• Severe headaches
• Fever and systemic infection
• Rapid neurological deterioration

Neurological Symptoms

Patients with retained cranial foreign bodies commonly experience:

• Seizures and epilepsy: New-onset seizures weeks, months, or years after surgery
• Persistent headaches: Often resistant to standard pain management
• Memory loss and cognitive impairment: Progressive decline in mental function
• Focal neurological deficits: Weakness, sensory loss, or speech problems depending on location
• Personality changes: Behavioral alterations related to frontal lobe irritation

According to medical literature, retained surgical cotton can induce potentially life-threatening immunologic responses, impair postoperative imaging, lead to textiloma or misdiagnosis, and require reoperation. In many cases, symptoms become permanent despite removal of the foreign object.

Reoperation Risks

Every brain surgery carries inherent risks, including:

• Bleeding and stroke
• Further brain damage
• Infection
• Anesthesia complications
• Permanent neurological deficits

Requiring a patient to undergo an additional, unplanned craniotomy to remove a retained object subjects them to these risks a second time—risks they should never have faced.

Why Do Surgical Teams Leave Objects in Patients’ Brains?

The Joint Commission’s analysis of sentinel events identified multiple contributing factors to retained foreign objects:

According to The Joint Commission, preoccupation or task fixation limiting situational awareness appeared as a recurring theme in retained object cases.

Systems Failures, Not Just Individual Errors

While individual negligence may contribute, retained surgical objects typically result from systems failures. Hospitals and surgical teams should have multiple layers of protection to prevent these never events:

• Standardized counting protocols for all materials
• Radiofrequency tagging technology for sponges and instruments
• Mandatory pre-closure verification procedures
• Clear team communication protocols
• Adequate staffing and supervision
• Post-operative imaging when counts are incorrect or uncertain

When any of these safeguards fail and a patient suffers injury, the responsible parties may be held liable for medical malpractice.

New York Legal Standards: Res Ipsa Loquitur and Statute of Limitations

New York law treats retained surgical objects as clear medical negligence. Unlike many medical malpractice claims that require extensive expert testimony about whether the physician met the standard of care, retained foreign object cases often rely on a simpler legal principle: the thing speaks for itself.

Res Ipsa Loquitur: The Thing Speaks for Itself

The doctrine of res ipsa loquitur applies when an injury is of a type that does not ordinarily occur absent negligence. According to New York case law, to invoke res ipsa loquitur, a plaintiff must demonstrate:

• The event does not happen in the absence of negligence
• The instrumentality causing harm was within the defendant’s exclusive control
• The plaintiff did not voluntarily contribute to the injury

Retained surgical sponges and instruments clearly meet these criteria. Surgical sponges do not appear in patients’ brains except through surgical negligence, the surgical team has exclusive control of all materials during surgery, and patients under anesthesia cannot contribute to the error.

Under res ipsa loquitur, the plaintiff does not have to prove the specific negligent act—the presence of the retained object itself establishes a rational basis for concluding the defendant’s negligence more likely than not caused the injury.

Prima Facie Evidence of Negligence

New York courts have recognized that retained surgical objects constitute prima facie evidence of negligence. This legal standard means the retained object alone establishes a case of negligence unless the defendant can present evidence explaining how the object could have been retained despite exercising reasonable care—a virtually impossible burden for defendants to meet.

New York Statute of Limitations for Retained Foreign Objects

New York’s medical malpractice statute of limitations typically requires claims to be filed within two and a half years of the negligent act. However, retained foreign objects receive special treatment under New York law because victims often cannot discover these objects for months or years after surgery.

The Discovery Rule: CPLR 214-a

According to New York Civil Practice Law and Rules § 214-a as published by the New York State Senate, when a medical malpractice action is based upon discovery of a foreign object in the patient’s body, the action may be commenced within one year of the date of discovery or the date of discovery of facts that would reasonably lead to such discovery, whichever is earlier.

This discovery rule recognizes that patients may not experience symptoms or undergo diagnostic imaging revealing the retained object until long after the standard statute of limitations would have expired.

What Qualifies as a “Foreign Object” Under New York Law?

Not every material left in a patient’s body qualifies for the extended statute of limitations. According to New York law, CPLR 214-a specifically excludes:

• Chemical compounds
• Fixation devices
• Prosthetic aids or devices

The statute applies to objects inadvertently left inside the patient, not materials intentionally implanted during surgery. Surgical sponges, cotton balls, instrument fragments, guidewires, and similar items clearly qualify as foreign objects under the statute.

When Does the Discovery Clock Start?

The discovery rule triggers when:

• You actually discover the retained object through imaging or symptoms, OR
• You discover facts that would lead a reasonable person to suspect a retained object exists

In Sogojeva v. Staffenberg, a patient experienced unusual sensations four years after orbital fracture surgery before a retained drill bit was discovered and removed. The court determined the discovery date was when the object was actually found via imaging, not when the patient first experienced symptoms, because a reasonable person might attribute ongoing pain to the prior surgeries and intentionally placed materials.

Another documented case involved a patient who became mentally unstable with fear of sudden death after learning a surgical instrument had been left inside his body, requiring institutionalization at a psychiatric hospital. This case demonstrates how the psychological trauma from discovering a retained foreign object can be as devastating as the physical complications, justifying significant non-economic damages for mental anguish.

These cases illustrate the importance of documenting when you learned of the retained object and maintaining records of all medical consultations leading to discovery.

Damages Available in Retained Object Brain Injury Cases

Victims of retained surgical objects in brain surgery may recover several categories of damages through medical malpractice claims:

Economic Damages

• Past and future medical expenses: Emergency room visits, diagnostic imaging, hospitalization for removal surgery, rehabilitation, medications, and ongoing neurological care
• Lost wages: Income lost during recovery from both the initial surgery and the corrective procedure
• Lost earning capacity: Reduced ability to work due to permanent neurological deficits, seizures, or cognitive impairment
• Travel expenses: Transportation costs for specialized neurological treatment

Non-Economic Damages

• Pain and suffering: Physical pain from the retained object, infection, granuloma formation, and reoperation
• Mental anguish: Psychological trauma from learning a foreign object was left in your brain and requiring additional surgery
• Loss of enjoyment of life: Inability to participate in activities you previously enjoyed due to seizures, headaches, or other complications
• Loss of consortium: Impact on your relationship with your spouse

According to documented medical malpractice cases, one man who became mentally unstable with fear of sudden death after learning a surgical instrument had been left inside his body required institutionalization at a psychiatric hospital, demonstrating the severe psychological impact these injuries can cause.

The Cost of Retained Surgical Items

Healthcare systems face substantial financial consequences from retained surgical items. Research indicates these never events cost between $60,000 to $5 million per case, with an estimated annual cost of $2.4 million for healthcare systems. These figures reflect the expense of corrective surgeries, extended hospitalizations, legal fees, and settlements—all preventable costs if proper protocols were followed.

Who Can Be Held Liable for Retained Objects in Brain Surgery?

Multiple parties may share responsibility when a surgical object is retained in a patient’s brain:

In most cases, hospitals bear ultimate responsibility through the doctrine of respondeat superior (vicarious liability for employees’ actions) and direct liability for failing to maintain proper systems to prevent never events.

What to Do If You Suspect a Retained Surgical Object

If you experience new or worsening symptoms after brain surgery, take these steps to protect your health and legal rights:

Immediate Medical Actions

• Seek medical evaluation: Contact your neurosurgeon or primary care physician immediately if you develop new headaches, seizures, fever, or neurological symptoms after brain surgery
• Request imaging studies: Ask for CT or MRI scans if you suspect something may have been left behind; explain your specific concerns
• Obtain complete medical records: Request copies of all operative reports, pathology reports, and nursing notes from your surgery
• Document symptoms: Keep a detailed log of when symptoms began, their severity, and how they impact your daily life
• Get a second opinion: Consider consultation with an independent neurosurgeon not affiliated with the hospital where your surgery occurred

Legal Protection Steps

• Consult a medical malpractice attorney promptly: Even with the one-year discovery rule, you should not delay seeking legal advice
• Preserve evidence: Keep all medical bills, correspondence with healthcare providers, and documentation of how the injury affects your life
• Do not sign releases: Avoid signing any documents from the hospital or their insurance company before consulting an attorney
• Avoid discussing the case: Do not post about your case on social media or discuss it with anyone except your attorney and spouse

Building and Proving Your Case

Building a successful medical malpractice claim for a retained surgical object requires thorough evidence gathering and expert analysis:

Essential Evidence

• Medical imaging: CT scans, MRI studies, or X-rays showing the retained object
• Operative reports: Documentation from both the initial surgery and any corrective procedures
• Pathology reports: Analysis of removed foreign body confirming it is surgical material
• Nursing notes: Records of instrument and sponge counts during surgery
• Hospital policies: The facility’s written protocols for counting and verifying surgical materials

Expert Testimony Requirements

Although res ipsa loquitur simplifies proof of negligence, you still typically need medical experts to establish:

• The standard of care for preventing retained objects in neurosurgery
• How the surgical team’s actions departed from that standard
• Causation between the retained object and your specific injuries
• The nature and extent of permanent impairments
• Future medical needs and associated costs

Your attorney will work with qualified neurosurgeons, neurologists, and other specialists to build compelling expert testimony supporting each element of your case.

Common Hospital Defenses

Despite the clear evidence retained objects provide of negligence, hospitals and their insurers often raise defenses including:

Emergency Exception Claims

Defendants may argue that a life-threatening emergency during surgery justified rushing through normal counting procedures to save the patient’s life. However, this defense rarely succeeds because even in emergencies, teams can take post-operative X-rays if counts are incomplete.

Contributory Negligence

Some defendants attempt to blame patients for not returning for follow-up care that might have detected the object sooner. This defense typically fails because patients under anesthesia cannot contribute to foreign objects being left in their bodies.

Minimizing Damages

Defendants often argue that symptoms resulted from the underlying condition requiring surgery rather than the retained object. Thorough medical documentation and expert testimony can overcome these arguments by demonstrating the temporal relationship between object retention and new symptoms.

Statute of Limitations Challenges

Hospitals may argue you discovered or should have discovered the retained object earlier than you claim. Detailed documentation of when symptoms began, what tests were performed, and when the object was confirmed becomes critical to defeating these challenges.

Prevention Technologies and Hospital Responsibility

Modern healthcare offers multiple technologies and protocols to prevent retained surgical items, making these injuries increasingly indefensible:

According to The Joint Commission, computer-aided diagnostic systems for post-operative verification and improved handoff communication protocols show promise in reducing retained object incidents. The Agency for Healthcare Research and Quality (AHRQ), a division of the U.S. Department of Health and Human Services, has published comprehensive patient safety guidelines that include protocols specifically designed to prevent retained surgical items in all surgical procedures, including neurosurgery.

When hospitals fail to implement available safety technologies and protocols documented by federal agencies and national safety organizations, their negligence becomes even more apparent in resulting malpractice cases.

Finding the Right Medical Malpractice Attorney

Retained surgical object cases require attorneys with specific expertise in medical malpractice litigation and brain injury claims. Look for:

• Proven track record: Experience handling medical malpractice cases involving surgical errors and brain injuries
• Access to medical experts: Established relationships with neurosurgeons and neurologists who serve as expert witnesses
• Trial experience: While many cases settle, you need an attorney prepared to take your case to trial if necessary
• Resources for complex litigation: Medical malpractice cases require substantial upfront investment in expert fees, medical record review, and case preparation
• Understanding of CPLR 214-a: Specific knowledge of New York’s foreign object discovery rule and how to protect your rights under it

Most medical malpractice attorneys work on contingency fee arrangements, meaning they receive payment only if they recover compensation for you. This structure allows injured patients to access experienced legal representation regardless of financial circumstances.

Financial Impact and Damages

The costs of a retained surgical object extend far beyond the immediate medical expenses:

Direct Medical Costs

• Emergency diagnostic imaging (CT, MRI): $1,000 to $5,000
• Repeat craniotomy to remove object: $50,000 to $150,000
• Extended hospitalization: $3,000 to $10,000 per day
• Neurological rehabilitation: $1,500 to $3,500 per day for inpatient programs
• Ongoing seizure management: $2,000 to $10,000 annually
• Neuropsychological treatment: $150 to $300 per session

Indirect Economic Losses

• Lost wages during recovery from corrective surgery
• Reduced earning capacity if seizures or cognitive deficits prevent returning to previous employment
• Caregiver expenses if family members must reduce work hours to assist with care
• Home modifications if mobility or cognitive impairments require accessibility changes
• Transportation costs for specialized neurological care

Lifetime Care Needs

Some retained object victims suffer permanent neurological damage requiring lifetime care, including:

• Ongoing anti-seizure medications
• Regular neurological monitoring
• Cognitive rehabilitation therapy
• Vocational retraining
• Psychological counseling for trauma and adjustment

Comprehensive medical malpractice claims must account for all these current and future costs to ensure adequate compensation.

Contact an Experienced New York Brain Injury Attorney

If you or a loved one suffered complications from a retained surgical object following brain surgery, you deserve experienced legal representation to protect your rights and pursue full compensation. Retained foreign object cases involve complex medical evidence, strict procedural requirements under New York law, and substantial damages requiring thorough documentation.

Our team understands the medical complexities of neurosurgical malpractice and the devastating impact retained objects have on patients and families. We work with leading neurosurgical experts to build compelling cases and have successfully represented clients in brain injury matters throughout New York.