Sponge or Instrument Left in Your Body After Surgery: Your Rights in California

What is a retained surgical object case?

A retained surgical object is anything left inside a patient’s body after an operation that has no medical reason to be there. The most common examples are surgical sponges, gauze, clamps, needles and pieces of broken instruments. Patients often have pain, fever, infection or a bowel blockage for weeks or months before a scan finally shows the object. Some need a second surgery to remove it.

Hospitals use counts and checklists before closing a patient to make sure everything that went in comes out. When an object is left behind, the questions usually are who was responsible for the count, whether the count was done, and whether anyone noticed a discrepancy. Those answers are in the operative report, the nursing records and the count sheets, which should be requested early.

Under California’s jury instructions, a health care professional is negligent if they fail to use the skill, knowledge and care in diagnosis and treatment that other reasonably careful practitioners would use in the same or similar circumstances (CACI No. 501). A retained sponge or instrument is a common example of care that falls short of that standard. You can read about the general rules on our Los Angeles medical malpractice lawyer page.

How long do you have to sue for a sponge left after surgery?

A California malpractice lawsuit generally must be filed within three years after the injury or one year after the patient discovers, or reasonably should have discovered, the injury, whichever comes first (Code of Civil Procedure 340.5). The three-year outer limit can be extended only for fraud, intentional concealment, or a foreign object with no medical purpose left in the patient’s body.

When a foreign body with no therapeutic or diagnostic purpose, such as a surgical sponge or instrument, is left in a patient, the three-year outer deadline is extended. The one-year-from-discovery deadline still applies. In plain terms, the three-year limit counted from the surgery is extended, but once you learn about the object, or should have, you have one year to act. The date of discovery is usually the date that matters most.

Before filing, you must give the provider at least 90 days’ written notice of your intent to sue (Code of Civil Procedure 364). If the notice is served in the last 90 days before the deadline, the deadline is extended; the California Supreme Court has held this tolls the one-year period for 90 days (Woods v. Young (1991) 53 Cal.3d 315). Our guide to California malpractice deadlines explains how these rules fit together.

Do you need an expert when a sponge was left inside you?

Expert testimony is generally required in a California malpractice case to prove the standard of care, breach and causation. There is a narrow exception for matters within common knowledge, and the example California’s jury instruction materials give is a sponge left inside a patient after surgery (CACI No. 501, Directions for Use and Sources and Authority). A jury can understand that kind of mistake without a doctor explaining it.

That exception is narrow. Even in a retained object case, your lawyer will often still use doctors to explain the harm: the infection, the second surgery, the lasting damage and what future care you will need. Doctors may also be needed to connect symptoms you had for months to the object. The exception makes the question of fault simpler, but it does not prove the full value of the case on its own.

Hospitals must report a retained object to the state

California hospitals must report specified serious adverse events to the California Department of Public Health within five days of detection, or within 24 hours if the event is an ongoing urgent or emergent threat. The list includes a foreign object left after surgery and surgery on the wrong body part (Health and Safety Code 1279.1). The Department can impose an administrative penalty on a hospital for a deficiency that is an immediate jeopardy to a patient’s health or safety (Health and Safety Code 1280.3).

You can look up the hospital in our Los Angeles County hospital records hub, which shows each hospital’s state health department records and Medicare data in one place. Medicare also publishes each hospital’s infection ratios against a national benchmark, including surgical site infections after colon surgery and abdominal hysterectomy (Medicare hospital infection data). This information shows the hospital’s record overall and gives you context for your own case.

Who is responsible: the surgeon, the nurses or the hospital?

Responsibility can be shared among the surgeon, the nurses who did the count and the hospital. A hospital can be liable for an independent-contractor doctor’s negligence under ostensible agency when the patient looked to the hospital for care and was not put on notice that the doctor was not a hospital employee (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448). A hospital also has its own duty to use reasonable care in selecting and reviewing the doctors it allows to practice there (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332).

If the surgery was at a Los Angeles County hospital, such as Harbor-UCLA Medical Center or Olive View-UCLA Medical Center, a written government claim generally must be presented within six months after the claim accrues (Government Code 911.2). That six-month claim does not apply to UCLA’s own hospitals, run by the UC Regents (Government Code 905.6). Our page on suing a county or UC hospital explains the steps.

What a retained object claim can recover

A claim can include the cost of the second surgery and other medical care, lost earnings, and non-economic damages for pain and the disruption to your life. MICRA caps non-economic damages, and for an injury case in 2026 the cap is $470,000 per category. One case can have up to three separate caps: one for doctors as a group, one for hospitals as a group, and one for unaffiliated providers (Civil Code 3333.2).

The defendant may tell the jury about benefits you received from sources like health insurance or disability, and those payers then cannot recover that money from you or the defendant (Civil Code 3333.1). Lawyer fees are capped at 25 percent if the case settles before a lawsuit or arbitration demand is filed and 33 percent after (Business and Professions Code 6146). You owe no fees or costs unless we win.

What to do now

Request the records from the original surgery and from the surgery or procedure where the object was found. California patients and their representatives can inspect records within 5 working days of a written request and receive copies within 15 days (Health and Safety Code 123110). Ask for the operative reports, the nursing count sheets, the imaging that showed the object and the pathology report on what was removed.

Write down the date you first learned about the object, because that date may start the one-year clock. Ask in writing that the removed object and the related images be kept. Do not sign anything from the hospital or its insurer, even an offer to waive a bill, before you talk to a lawyer. Then call a lawyer soon, since the 90-day notice has to fit inside the one-year period.

• Request both operative reports, the count sheets and the imaging.
• Write down the date you learned about the object.
• Ask in writing that the removed object be preserved.
• Do not sign anything from the hospital or its insurer before getting advice.

Michael Shemtoub founded Beverly Law in 2008 and has been licensed to practice law in California since 2007. He earned his law degree at UC Hastings, is admitted to practice in the U.S. District Courts for the Central and Northern Districts of California, and has tried cases to verdict. As the firm’s managing attorney, he oversees its cases.

Common questions

Related pages

Los Angeles County hospital records · California Medical Malpractice Statute of Limitations · Los Angeles medical malpractice lawyer

Important: This page is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Deadlines and damage limits depend on the facts of each case; talk to a lawyer about yours. MICRA amounts are for judgments, awards and settlements in 2026. Last reviewed: November 5, 2026.