When a sponge or instrument is left inside a patient after surgery

A swab, a surgical mop, a pair of forceps or a length of gauze left inside the body when the wound is closed is one of the few medical injuries the law treats as nearly self-proving. The standard of care for a surgeon is the protective Bolam standard — the ordinary skill of an ordinarily competent practitioner — accepted for India in Indian Medical Association v V P Shantha and elaborated in Jacob Mathew v State of Punjab, and a mere error of judgment is not negligence. But a foreign body sealed inside a patient is different in kind. In Achutrao Haribhau Khodwa v State of Maharashtra, (1996) 2 SCC 634, a mop was left inside a woman's abdomen during an operation; peritonitis developed, a second surgery followed, and she did not survive. The Supreme Court fixed liability on the institution because no valid explanation was forthcoming for the swab having been left behind, and held the doctrine of res ipsa loquitur applicable to such a case. This guide sets out the standard of care, why a retained foreign body shifts the evidential burden, the hospital's vicarious liability, the consumer-commission route, and the criminal threshold.

Most medical-negligence claims are hard to prove. The patient must show that a doctor's conduct fell below the standard the law sets for a professional, and that standard is deliberately protective of honest clinical judgment — a doctor is not negligent merely because the outcome was poor, or because a different doctor would have chosen a different course. A retained foreign body sits apart from that ordinary difficulty. When a swab, a mop or an instrument is found inside a patient after the wound has been closed, the event is of a kind that does not happen if reasonable care has been used in the operating theatre, and the team that controlled the procedure is the only source of any innocent explanation. That is the classic setting for the rule of evidence called res ipsa loquitur — the thing speaks for itself — and it is the setting the Supreme Court confronted in Achutrao Haribhau Khodwa v State of Maharashtra, (1996) 2 SCC 634. The result is that a retained-foreign-body claim, while still governed by the same law of medical negligence as every other, is one the patient is far better placed to win — provided the claim is built against the right defendant, in the right forum, with the right evidence.

The standard of care — Bolam, Shantha and Jacob Mathew

A professional, in entering a calling that demands a particular level of learning, impliedly assures those who deal with him that he possesses the requisite skill and will exercise it with reasonable competence. He does not assure a result. A surgeon does not guarantee that an operation will succeed; what he undertakes is competence — that he holds the ordinary skill of his branch and will bring ordinary care to its exercise. On that footing, as Jacob Mathew v State of Punjab, (2005) 6 SCC 1 puts it, a professional may be found negligent on one of two findings only: that he did not possess the requisite skill he professed to have, or that he did not exercise, with reasonable competence, the skill he did possess.

The measuring rod is the Bolam test, drawn from Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582 and adopted for India in Indian Medical Association v V P Shantha, (1995) 6 SCC 651. The standard is that of the ordinary skilled man exercising and professing to have that special skill; the practitioner need not possess the highest expert skill — it is enough that he exercises the ordinary skill of an ordinary competent man exercising that particular art. Two refinements, carried into Indian law through Jacob Mathew, sharpen it. First, a doctor is not negligent merely because a body of opinion would have taken a different course, if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that art, even though a body of contrary opinion also existed. Second, the standard is judged in the light of the knowledge available at the time of the incident, not with the hindsight of trial. A mere error of judgment, a mere deviation from normal practice, and a mere accident are each, by themselves, not negligence — Jacob Mathew is emphatic that the human body and medical science are too complex for an adverse outcome to be treated as proof of fault.

Why a retained foreign body is treated differently

That protective standard explains why most negligence claims are difficult, and it explains, by contrast, why a retained foreign body is not. Leaving a swab or an instrument inside a patient is not a matter of clinical judgment at all. There is no responsible body of surgical opinion that accepts sealing gauze inside an abdomen as a proper course; there is no genuine difference of opinion to shelter behind; it is not an error of the kind a reasonably competent surgeon, acting with ordinary care, might have made. The accepted practice in every operating theatre is to count swabs, mops and instruments before the incision and again before the wound is closed, precisely so that nothing is retained. A foreign body found inside the patient afterwards is therefore not an unfortunate outcome of a difficult operation; it is, on its face, a failure of the elementary precaution the procedure demanded.

The point is the same one the Supreme Court made about the omission of an elementary precaution in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole, AIR 1969 SC 128 — a claim under the Fatal Accidents Act, 1855 — where the patient died of shock resulting from a reduction of a fracture attempted without the elementary caution of giving an anaesthetic. The omission of a recognised, elementary precaution is not an error of judgment within the protected zone; it is a failure to exercise the ordinary skill the practitioner held himself out as having. A retained swab is the surgical equivalent: the swab count is the elementary precaution, and its failure produces an injury that the protective Bolam reasoning does not, and was never meant to, excuse.

Res ipsa loquitur — the thing speaks for itself

The patient who emerges from anaesthesia with a foreign body inside him faces an evidential problem: he was unconscious, and everything that happened in the theatre is known only to the medical team. Res ipsa loquitur is the rule of evidence that answers it. It belongs to the law of torts, and it operates where two conditions are met — the instrumentality that caused the harm was under the defendant's exclusive control, and the accident is of a kind that would not ordinarily happen if due care had been used. Where both are satisfied, the happening itself affords prima facie evidence of negligence, and the burden shifts: it is then for the defendant to come forward with a reasonable explanation consistent with the exercise of due care. If no such explanation is forthcoming, the inference of negligence stands.

A retained foreign body fits the rule almost exactly. The operating theatre, the surgical team, the swabs, the mops and the instruments are all under the hospital's exclusive control; a swab sealed inside a patient is not something that happens in the ordinary course if reasonable care — the swab count — has been taken. Achutrao Haribhau Khodwa v State of Maharashtra, (1996) 2 SCC 634 is the Indian anchor. A mop was left inside a woman patient's abdomen during an operation; peritonitis developed, a second surgery followed, and she did not survive. The Supreme Court fixed liability for negligence because no valid explanation was forthcoming for the mop having been left behind, and it held the doctrine of res ipsa loquitur applicable "in a case like this". The decision is the reason a retained-foreign-body claim is among the strongest a patient can bring: the patient need not reconstruct what went wrong inside the theatre — the unexplained foreign body does the proving, and the explanation, if any exists, is the hospital's to supply.

Two cautions keep the rule honest. Jacob Mathew stresses that res ipsa loquitur is not of universal application and must be applied with extreme care and caution in medical cases — a doctor cannot be held liable per se simply because a patient did not respond favourably or an operation failed. The rule assists the retained-foreign-body claimant precisely because the injury is of a kind that does not occur without negligence; it does not convert every poor surgical outcome into a finding against the surgeon. And in a criminal prosecution the rule does no work at all: there the burden of proving negligence as an ingredient of the offence lies on the prosecution and must be discharged by evidence, not by the maxim.

Who answers — the hospital's vicarious liability

Establishing that a foreign body was negligently retained is only half the patient's case; the more practically important half is who pays. Indian law fixes liability on the institution. A hospital that employs surgeons, anaesthetists, nurses and technical staff, and undertakes to treat the patient, is vicariously liable for the negligent acts and omissions of those staff committed in the course of their employment — the ordinary master-and-servant principle, applied to the hospital.

Achutrao Haribhau Khodwa is itself the leading illustration: the negligence in that case was the team's, but the Supreme Court fixed liability on the State, which ran the hospital. The reasoning is institutional. The operating theatre, the surgical team, the swab count, the instrument trays and the procedure were all under the hospital's control, and an unexplained foreign body in that controlled environment engages the hospital's answerability. Spring Meadows Hospital v Harjol Ahluwalia, (1998) 4 SCC 39 widens the same principle, holding a hospital answerable for the negligence of its staff in the treatment of a child, and the consistent line of consumer-fora decisions holds hospitals liable for the conduct of the doctors and nurses they deploy. A hospital cannot answer that the lapse was the personal failing of one nurse or one surgeon; deploying that staff, and undertaking the patient's care through them, is the hospital's own act. The practical consequence is that the injured patient should array the hospital — not confine the claim to the individual surgeon — and leave the commission to apportion liability among the institution and its staff.

The patient is a "consumer" — the route through V P Shantha

The forum that makes a retained-foreign-body claim practically usable is the consumer commission, and the door to it was opened by Indian Medical Association v V P Shantha, (1995) 6 SCC 651. The three-Judge Bench held that medical services rendered for consideration fall within the Consumer Protection Act — the patient who pays for treatment is a "consumer", and the hospital and the doctor render a "service" — so that a claim of medical negligence can be pursued as a complaint of deficiency in service before the consumer fora, without the cost and delay of an ordinary civil suit. V P Shantha also confirmed that medical professionals enjoy no immunity from being sued in contract or tort for negligence; the consumer route is an addition to those remedies, not a replacement.

Section 2(11) of the Consumer Protection Act, 2019 defines deficiency as any fault, imperfection, shortcoming or inadequacy in the quality, nature or manner of performance required to be maintained by or under any law or contract, and it expressly includes any act of negligence, omission or commission that causes loss or injury. A negligently retained swab or instrument is, on the Achutrao Haribhau Khodwa reasoning, a deficiency in the service the hospital undertook, and the complaint can be brought against the hospital with the surgeon and the operating staff arrayed alongside. The 2019 Act re-enacts and replaces the Consumer Protection Act, 1986 under which V P Shantha itself was decided, so the doctrine carries forward unchanged. The consumer commissions are arranged in the District, State and National tiers the 2019 Act sets out in Sections 35, 47 and 58, the jurisdiction fixed by the value of the consideration and the claim; and the relief is wide — compensation for the injury, for the corrective surgery the retained body made necessary, for the loss of earning, and for the pain and mental agony, with interest and costs. In serious medical-injury matters the fora have awarded substantial sums where the negligence was established.

Building the claim — the evidence that matters

The strength of a retained-foreign-body claim depends on securing the record before it can be lost. The single most important document is contemporaneous proof that the foreign body was inside the patient and that it came from the index operation — the imaging that located it, the operation notes of the first surgery, the discharge summary, and the operation notes of the corrective procedure that removed it. The swab and instrument count records of the first operation, where they exist, are decisive: a count recorded as correct when a swab was in fact retained is itself evidence of the lapse, and a count not done at all is the absence of the elementary precaution. An independent expert medical opinion confirming that the retained body could only have been left at the index surgery, and that its retention is not consistent with ordinary care, completes the evidential chain.

Because the rule of res ipsa loquitur places the explanatory burden on the hospital, the claimant's task at the threshold is comparatively narrow: prove the foreign body, prove that it was retained from the operation the hospital performed, and prove the injury that followed. The hospital must then explain — and on the authority of Achutrao Haribhau Khodwa, the explanation must be a valid one, not merely an assertion that care is usually taken. Acting early matters: records can be incomplete, and the limitation period for a consumer complaint runs from the date the cause of action arose, so the claim should be filed within time and any delay supported by an application for condonation.

The criminal threshold is far higher

Where the patient has died — as in Achutrao Haribhau Khodwa itself — a criminal prosecution may be considered, and the law sets that bar deliberately high. The negligence that grounds civil liability — a simple lack of care — is not enough for a crime. Criminal negligence must be gross, of a very high degree, showing such disregard for the life and safety of others as to amount to a crime against the State. Jacob Mathew v State of Punjab, (2005) 6 SCC 1 settled this for medical professionals, drawing the line between the "simple lack of care" that founds a damages claim and the "very high degree of negligence" a criminal charge demands, and warning against the indiscriminate prosecution of doctors. Causing death by a rash or negligent act is now an offence under Section 106 of the Bharatiya Nyaya Sanhita, 2023 [Section 304A of the Indian Penal Code, 1860], with Section 106 carrying a specific provision for death caused by a registered medical practitioner's rash or negligent act in the course of a medical procedure — but the Jacob Mathew threshold of gross negligence governs whether the practitioner crosses into criminal liability at all. And Jacob Mathew is express that res ipsa loquitur cannot supply the proof in a criminal court: the prosecution must establish the gross negligence by evidence. For most retained-foreign-body injuries the realistic and appropriate remedy is the civil and consumer route; the criminal track is reserved for the genuinely gross lapse.

The position consolidated

A sponge or an instrument left inside a patient after surgery engages the same law of medical negligence as every other claim, but on terrain that strongly favours the patient. The standard of care is the protective Bolam standard — the ordinary skill of an ordinarily competent practitioner — adopted for India in Indian Medical Association v V P Shantha, (1995) 6 SCC 651 and elaborated in Jacob Mathew v State of Punjab, (2005) 6 SCC 1; a mere error of judgment is not negligence. But a retained foreign body is not an error of judgment — it is the failure of the elementary precaution of the swab count, and on the reasoning of Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole, AIR 1969 SC 128 the omission of an elementary precaution is negligence. Achutrao Haribhau Khodwa v State of Maharashtra, (1996) 2 SCC 634 applies res ipsa loquitur to exactly this injury, so the unexplained foreign body shifts the burden onto the hospital. The hospital that ran the theatre and undertook the patient's care is vicariously liable, as Achutrao Haribhau Khodwa and Spring Meadows Hospital v Harjol Ahluwalia, (1998) 4 SCC 39 confirm, so the patient should array the institution. The claim is a deficiency in service under Section 2(11) of the Consumer Protection Act, 2019, brought before the District, State or National consumer commission, with compensation reaching the injury, the corrective surgery, the loss of earning and the mental agony. The criminal route, under Section 106 of the Bharatiya Nyaya Sanhita, 2023 [Section 304A of the Indian Penal Code, 1860], opens only on gross negligence of the very high degree Jacob Mathew requires. The patient who secures the imaging, the operation notes and the count records early, fixes the hospital with vicarious liability, and builds the claim before the consumer commission is using the law as it is built to be used.

This guide is general information about Indian law for adult readers and is not legal advice. The standard of care of a medical professional, the doctrine of res ipsa loquitur, the vicarious liability of a hospital for its staff, the deficiency-of-service remedy and the criminal threshold for medical negligence are governed by the Consumer Protection Act, 2019, the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023, the Fatal Accidents Act, 1855, the case law referenced above and the regulations of the National Medical Commission, all of which may have changed since this guide was last reviewed. For a specific injury caused by a retained surgical foreign body, consult a lawyer and obtain the imaging, the operation and anaesthesia records, the swab and instrument count records, the discharge summary and an independent expert medical opinion.