Personal Injury Attorney Ben Schwartz shares his own experience with a retained surgical instrument after a dental procedure.

Hi, I am Attorney Ben Schwartz,

Today we are going to do a video on the topic of a retained surgical instrument. I want to tell you a story. Many years ago, when I was still in law school I went and had surgery to remove my wisdom teeth. After the surgery, you know I started healing. I would swish the salt water and take the medicine that the dentist prescribed for me and on one side the socket, where the wisdom tooth came out healed up nicely. On the other side it did not heal, and not only did it not heal, but it also started tasting bad after a couple of weeks and it got worse.

The problem was that I had this wisdom tooth surgery while I was on break. I think it was spring break in law school, and as a law student, I did not have a lot of time. I had to go back to school, and I had to hit the books hard and continue studying. Well after a few weeks of being back in classes, the taste in my mouth got worse and it was clear that I had some sort of infection going on.

So, I went to a dentist in New York City, and he took some x-rays, and he came, and he asked me, do you have some jewelry in your jaw or in your mouth? I said, no I do not have any. I am not the type of guy that puts jewelry in his mouth. I do not even wear any jewelry. He said, “Well we are going to run this x-ray series again and see if maybe it was a mistake. So, they did the x-rays again and sure enough, there is a piece of metal in the jaw, down in the socket and the bone had grown around it.

They had to do surgery to get that piece of metal out. They had to scrape down the bone and down in the socket in order to get that metal out and what we think happened was it some sort of a clip or some sort of a staple that got left in the surgery site after the surgery site was closed. And so we had some sort of retained surgical instrument. This is something that is of interest to me in my law practice. It is something that I think people do not really talk about and I would like to talk about it.

In fact, I have a picture, this is from the Boston Globe. This is not from one of my cases, but this is a photograph of an x-ray of a gentleman that had surgery in a VA hospital, and you can see the surgeons’ implement in the abdominal cavity, in the pelvic cavity on the x-ray and it is a situation where he had surgery. The surgeon left an instrument in the cavity. Closed up the patient after the surgery and for years he had pain and could not figure out what was going on. Finally, someone took an x-ray and identified what the problem was, and you know it was a routine surgical implement.

So, I want to talk about this. You know it is not as rare as you would think. According to some estimates, there are between two thousand and four thousand incidents of this every year. Now you have to understand that sometimes things are left in the body intentionally and sometimes things are left in the body by accident. So, I will give you an example, let us say that you are the victim of a robbery, and you sustained a gunshot wound. You may have fragments of the bullet inside your body. When the surgeon goes in to take the bullet out, he may not be able to reach all the fragments of the bullet. Maybe some of the fragments of the bullet are close to nerves or other delicate areas and retrieving the fragments would cause more damage than leaving them in.

So the surgeon intentionally leaves the bullet fragments in. That is not what I am talking about. I am talking about situations where the surgeon that you know counts the number of implements that he is using. They do a sponge count. They do not properly count the number of implements they are in the tray before they close and they send the patient out of the OR and into RECOVERY with an instrument in the body that is not supposed to be there, that was not intentionally left there.

That is the type of situation that we see in my law firm and that I myself have had it happen to me. It is a situation where you know, the question comes up and I have this question several times. If I have had a surgical implement left in my body and it is not causing problems, do I still have a case? And I would say yes! Because if you have a surgical implement in your body and you ask a surgeon, hey is this likely to create problems going forward? You are going to find out that even if you are not having problems right now, it is possible, it may be probable that going forward you are going to start to develop problems as your body develops scar tissue around that foreign object. That foreign object may cause damage to internal organs. And so, in a lot of cases where there is a retained surgical instrument, the subsequent treatment is to have it removed. Which means you go through another surgery to have it removed.

So, if this is a situation you have, what you want to do is you want to get to a physician, preferably not the physician that left the instrument in your body. And you want to get a lawyer, preferably a lawyer that handles medical malpractice cases, including retained surgical implement or retained surgical instrument cases in the area where you live or where you had the surgery. In other words, in the jurisdiction where you are. You want to make sure that your lawyer is able to handle cases in that jurisdiction. So, you want to make sure that they have subject matter expertise as well as geographical expertise, and geographical availability for you.

Well, it is a good question. It is something that comes up often in my law practice. Something that I do not think many people want to talk about, certainly not in the medical community. But it is a topic that I think people should know about because it happens. Not only does it happen once a year or twice a year in the United States, but it happens thousands of times per year according to best estimates.

So, there you have it. If you have questions on this topic for me, feel free to send me an email. My email address is

Thanks for watching!

If you have topics that you would like me to address in one of these ten with Ben videos, excuse me please give me a comment in response to this video or send me an email and let me know what topics you would like me to talk about. I find all types of topics to be interesting and I know a lot about a broad range of topics. I would like to share that knowledge with people who are interested in learning more about law and about litigation. Thanks for watching. I am Attorney Ben Schwartz!