Can I claim if a surgical item was left inside my body after an operation?

Discovering that a surgical swab, instrument or piece of equipment was left inside your body is alarming. It often explains months of pain, infection or unexplained symptoms. This guide explains how such cases are approached in Malaysia.

Why are retained surgical items treated seriously?

Operating theatres use counting procedures: swabs, needles and instruments are counted before, during and after surgery, and the counts are recorded. These checks exist precisely to prevent items being left behind. When an item is found inside a patient later, it suggests that the checks failed somewhere.

Do I still have to prove negligence?

Yes, but the facts may speak strongly for you. Malaysian courts have recognised the principle known as res ipsa loquitur ("the thing speaks for itself"): where an event would not ordinarily happen without negligence, and the matter was under the defendant's control, the court may infer negligence unless the defendant gives a satisfactory explanation. Retained items are a classic example, though each case depends on its facts.

You must also prove what harm the retained item caused: additional surgery, infection, pain, time off work and so on.

Who is responsible?

Several people may share responsibility:

• the surgeon, who leads the operation and is expected to ensure items are accounted for;
• the theatre nurses, who usually perform and record the counts;
• the hospital, which employs nursing staff and sets theatre procedures. Hospitals can be vicariously liable for employees, and private hospitals may owe a non-delegable duty in some circumstances. See Dr Kok Choong Seng and our guide on non-delegable duty.

Defendants sometimes blame each other. That is a matter for them to resolve; your task is to show that the harm resulted from a failure in care for which they are responsible.

What evidence should I gather?

• the operation notes and theatre records, including swab and instrument count sheets;
• the anaesthetic chart (it records timings);
• imaging that identified the item;
• notes from the operation to remove it, and the item itself if retained by the hospital (ask that it be preserved);
• records of complications, infections and further treatment;
• bills, receipts and evidence of time off work.

Request these promptly. See how to get your medical records.

Have a question about your own situation? Ask on WhatsApp

What compensation may be available?

If liability is established, damages may include pain and suffering, the cost of further surgery and treatment, loss of earnings and other proven losses. Aggravated damages are sometimes argued where a hospital's conduct after the event was poor; our guide on aggravated damages discusses the developing law. Outcomes depend on the evidence.

What should I do right now?

1. Get the medical care you need.
2. Ask the hospital in writing to preserve the item and all theatre records.
3. Request complete copies of your records.
4. Write a timeline of symptoms since the first operation.
5. Get advice before signing any settlement or release.

When to speak to a lawyer

Speak to a lawyer as soon as a retained item is confirmed, especially if you need further surgery or the hospital offers a quick settlement. Early steps to preserve evidence can be important. Contact us to discuss your situation.

Frequently asked questions

What is res ipsa loquitur?

A principle that allows a court to infer negligence from the circumstances where an event would not normally happen without negligence and the matter was in the defendant's control.

The hospital apologised. Does that mean they accept liability?

Not necessarily. An apology is welcome but is not the same as an admission. Get advice before signing anything.

Can I claim if the item caused no symptoms?

Claims depend on harm. If removal needed further surgery or caused distress or other loss, that may be relevant. Take advice on your specific facts.

Should I keep the removed item?

Ask the hospital to preserve it and to record its chain of custody. It can be important evidence.

Is there a deadline?

Yes. Strict time limits apply. Get advice early.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Dr Kok Choong Seng & Anor v Soo Cheng Lin [2018] 1 MLJ 685 (Federal Court) (reported judgment)
2. Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 (Federal Court) (reported judgment)
3. Laws of Malaysia Online, Attorney General's Chambers (official text of Acts)

Fact-checked on 17 Oct 2026