**By Jon M. Herskowitz and Stuart F. Cohen**

“The intern made a mistake” may make for a compelling plot twist on Grey’s Anatomy or The Pitt. In an actual operating room, it is hardly an acceptable explanation for why a sponge, clamp, or piece of a medical device was left inside a patient. These incidents are known as retained surgical object, or RSO, cases. They are also considered “never events,” meaning they should never happen and are serious, identifiable, and largely preventable. Nevertheless, they continue to occur.

The Joint Commission received 119 reports of unintentionally retained foreign objects in 2024, up from 110 in 2023 and the highest reported total in five years. Sponges remained the most common item, accounting for 34% of the events, while fragments of instruments or medical devices accounted for another 17%. Forty-three percent of the reported incidents caused severe harm, although most of that harm was temporary. Because reporting to The Joint Commission is voluntary, these numbers likely do not capture the full scope of the problem.

For an attorney who receives the first call from a frightened patient, the case may appear unusually clear: An object was left behind, so someone must be liable and Florida law backs this up. However, an RSO case is not simply an easier version of a traditional medical-malpractice claim. In several respects, it can be even more demanding.

A Different Starting Point Under Florida Law

In most medical-malpractice cases, a poor outcome does not create a presumption that the provider was negligent. The claimant must establish that the provider breached the prevailing professional standard of care and caused the resulting injury.

Florida law treats retained foreign bodies differently. Section 766.102(3)(b), Florida Statutes, provides that discovering a sponge, clamp, surgical needle, or similar object inside a patient constitutes prima facie evidence of negligence. That gives the patient an important evidentiary advantage. It does not, however, answer every question that follows.

Who was responsible for the object? Was it introduced during the procedure at issue? Did it cause the patient’s current condition? When several providers participated in the surgery, the presence of the object may be obvious while responsibility for it is anything but.

The Case Is Often Bigger Than a Miscount

RSO cases are frequently described as counting failures, when it most often is a breakdown in communication. Operating rooms depend on communication between the surgeon and the nursing staff responsible for tracking sponges, instruments and other items. When a count is incorrect, the team should stop and resolve the discrepancy before the patient is closed. Yet some retained-object cases involve records stating that the final count was correct.

Counsel must determine who performed the count and whether it complied with hospital policy. If someone raised a concern, the record may show how the team responded or failed to respond. Staffing changes during the procedure can also reveal gaps in communication.

Hospitals and individual providers may quickly begin pointing at one another. A surgeon may say the nursing team announced a correct count. The hospital may argue that the surgeon controlled the surgical field. If a resident participated, the parties may dispute who handled that portion of the procedure and who was responsible for supervision.

Negligence May Be Clearer Than Causation

Some retained objects are discovered within days. Others remain inside the body for months or even years. During that time, a patient may experience pain, infection, or other symptoms that are attributed to routine postoperative recovery.

Once the object is found, the defense may concede that it should not have remained but argue that it did not cause all the patient’s problems. Preexisting conditions or complications associated with the original surgery may become central to the case.

A proper evaluation must separate the harm caused by the underlying medical condition from the consequences of the retained object. It must also account for any additional injury caused by the delay in discovering it.

The Evidence Can Disappear Quickly

When a retained object is removed, the patient is understandably focused on getting well. Meanwhile, a critical piece of evidence may be discarded.

Counsel should determine whether the object was preserved or photographed. The removal report and pathology records may help establish its identity and condition. Original diagnostic images should also be secured rather than relying solely on written interpretations.

The operative report is only one part of the record. Count sheets, nursing notes and operating-room logs may tell a different story about what occurred and who was present when it happened.

Time also matters. RSO claims remain subject to Florida’s medical-malpractice presuit requirements. Section 95.11(5)(c), Florida Statutes, generally requires an action to be commenced within two years of the incident or its discovery, subject to an outside four-year limitation in most cases. 

Knowing When to Bring in Experienced Counsel

A retained surgical object can make negligence appear self-evident. The difficulty lies in identifying every responsible party and building the medical evidence necessary to connect the error to the patient’s harm.

That combination makes these cases particularly important for referring attorneys to recognize early. The object itself may provide the first proof of negligence, but the strength of the claim will depend on what happens next: preserving the evidence, reconstructing the procedure, and anticipating the defenses before positions harden.

RSO cases are called “never events” because established safeguards should prevent them. When those safeguards fail, the object left behind is only the beginning of the inquiry. The real work lies in reconstructing what happened inside the operating room, identifying who was responsible and proving the full extent of the harm. That work requires counsel who understands that an apparent case of negligence is rarely a simple one.

Jon M. Herskowitz and Stuart F. Cohen are partners at Baron, Herskowitz & Cohen in Miami. They represent clients in complex medical-malpractice, serious personal-injury and wrongful-death matters throughout Florida. 

Reprinted with permission from the August 13, 2026  edition of the DAILY BUSINESS REVIEW © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.”