When a Retained Surgical Item Does Not Speak for Every Defendant

A patient has her knee replaced. Near the end of the operation, a suturing needle goes missing. The team searches for it, an x-ray is taken, and the radiologist reports no foreign body. The incision is closed and the patient goes to recovery. A few weeks later another x-ray shows the needle sitting in her knee.

Most malpractice lawyers hear those facts and think res ipsa loquitur. Surgical needles are not supposed to stay inside patients. But a recent Kentucky Supreme Court decision is a reminder that proving something went wrong in the operating room is not the same as proving which defendant is legally responsible for it.

In Diagnostic X-Ray Physicians, PSC v. Lloyd, Nos. 2024-SC-0216-DG and 2024-SC-0224-DG (Ky. June 25, 2026, modified Sept. 24, 2026), the court reinstated summary judgment for the two radiologists, their practice group, and the certified surgical assistant who had been holding the needle when it disappeared. This was exactly the kind of event that seems to speak for itself. The court still insisted on separating the existence of a medical error from the proof against each person sued.

What happened in the operating room

Deborah Lloyd had a right total knee replacement on December 20, 2019. While closing the incision, certified surgical assistant Sheila Slone realized the suturing needle had come loose from its holder. She searched visually, felt the area, and reported the loss right away. The whole team looked for it. When it did not turn up, the surgeon ordered an x-ray. The radiologist read it as showing “no unexpected radiopaque foreign body.” The surgeon reviewed the film as well, apparently did not see the needle either, and decided not to reopen the incision. A routine recovery room x-ray, read by a second radiologist, also missed it. Lloyd, slip op. at 2, 3.

At a follow-up visit in January 2020, a new x-ray showed a metallic foreign body in the knee. The wound later began to break down, and the needle was removed on February 7, 2020. According to the expert disclosures, Lloyd needed a third surgery later that month and long-term antibiotic and suppressive therapy. Id. at 3, 4.

She sued the surgeon, the surgical assistant, the hospital, and later the radiologists and their group. The surgeon settled and was dismissed. That left the defendants whose roles in the event were narrower and harder to pin down. Id. at 4.

The radiologists: a “stunning miss” is not a standard of care

Lloyd’s liability expert was an orthopedic surgeon with long experience in knee replacement and the imaging used during it. He did not hold back. In his deposition he called the radiologists’ failure to see the needle a “stunning miss.” Id. at 18.

The problem was what he said next. Asked whether the radiologists had failed to act as reasonable radiologists, he answered, “I’m not a radiologist,” and said he would defer to radiology on that question. Asked whether he knew the standard of care in radiology, he said, “No sir.” Id. at 6 to 8.

The court treated that as fatal. In its words, “it is impossible to know that a standard was not met without first defining the standard.” Id. at 18. It also noted that what looks like a stunning miss to one specialty may not fall below the standard of care for another. The Court of Appeals had focused on whether the surgeon was qualified to give a radiology opinion. The Supreme Court said that was the wrong question. Perhaps the expert “was qualified to testify about the standard of care of the Radiologists,” the court wrote, but “he just did not.” Id. at 20, 21.

This matters well beyond Kentucky. More and more malpractice cases involve care delivered by several specialties at once. A surgeon reviews a film. A radiologist gives a read while the patient is still on the table. Nurses, surgical technologists, assistants, and anesthesiologists all have a hand in preventing the same event. It is tempting to assume that one well-qualified expert who understands the procedure can carry the whole case.

Lloyd shows the risk. Kentucky requires expert proof of the standard of care, breach, and causation in a typical medical negligence case. Blankenship v. Collier, 302 S.W.3d 665, 667, 675 (Ky. 2010). Credentials and familiarity with the medicine do not answer whether the expert actually defined what a defendant in another specialty was required to do. Criticism of an outcome, however forceful, is not a standard of care opinion.

There was a second lesson in the record. The expert went beyond his written disclosures at deposition, and the trial court struck the late-disclosed opinions. Lloyd argued the order was overbroad but never sought relief from it. Lloyd, slip op. at 8. Disclosures that are thin, or that do not name each defendant’s standard, leave very little room to fix the problem later.

The surgical assistant: res ipsa needs control of the right thing

The claim against Slone raised a different question. Lloyd argued she did not need expert testimony at all, because a retained surgical object is a classic res ipsa case. Kentucky has long recognized that expert testimony may be unnecessary where “any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care,” and it has pointed to foreign objects left in the body as the standard example. Perkins v. Hausladen, 828 S.W.2d 652, 654, 655 (Ky. 1992).

Kentucky does not, however, treat a retained item as automatic negligence by everyone in the room. In Nazar v. Branham, the court rejected negligence per se in a retained object case. It held instead that res ipsa allows the jury to infer negligence while still weighing who did what, noting that “any number of people including the surgeon, anesthesiologist, nursing staff, and other hospital staff may be at fault.” 291 S.W.3d 599, 603, 604 (Ky. 2009).

That distinction decided the claim against Slone. Her own side’s expert testified that a needle can come loose from its holder even when the person holding it is being careful. “It’s happened to me,” he said. Asked if he had any criticism of her care, he answered, “She’s fine.” Lloyd, slip op. at 24.

The court then asked what actually caused the injury. It was not the needle coming loose. Had it been found right away, Lloyd would not have been harmed. The injury came from the needle staying in her body. And once it was lost, Slone had no authority to order or read an x-ray, reopen the incision, or decide when the operation would end. Those decisions belonged to the surgeon, who was in the room directing her work. Id. at 25, 26.

That let the court apply an established rule: “Applying res ipsa loquitur to a specific defendant in a specific case requires a showing that the defendant had full control of the instrumentality which caused the injury.” Savage v. Three Rivers Medical Center, 390 S.W.3d 104, 113 (Ky. 2012). Slone held the needle before it disappeared. She did not control the circumstances that allowed it to stay in the patient. Lloyd, slip op. at 25, 26.

The dissent and the Ybarra problem

The decision was not unanimous. Justice Thompson dissented, arguing that res ipsa creates a presumption that shifts the burden to all members of the surgical team to show they do not share responsibility for a retained object. Lloyd, dissenting op.

That view has deep roots. In Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944), the California Supreme Court dealt with an unconscious surgical patient who could not know which member of the team caused his injury. It allowed an inference of negligence against those who controlled his body and the instruments that could have harmed him. The concern was practical. A patient who was asleep should not lose a valid claim just because the people in the room hold all the information about what happened.

The Lloyd majority does not reject that logic. It shows how much depends on defining the harmful event precisely. Describe it broadly, as a needle left in a patient, and the whole team looks implicated. Break it into stages and the picture changes: the needle comes loose, the team searches, an x-ray is ordered, the film is read, and someone decides to close. Each stage involved different people with different duties and different degrees of control.

The clinical picture points the same way

The patient safety literature describes retained surgical items in similar terms. An AHRQ primer frames them as failures of complex systems involving communication, technology, and several professions. It treats nurses and scrub personnel, surgeons, and anesthesiologists as the primary defenders against retention, and radiologists and radiology technologists as secondary defenders who can limit harm when imaging is used. It also notes that false positive counts are “exceedingly common” with suture needles. Verna C. Gibbs & Patrick S. Romano, Retained Surgical Items: Causation and Prevention, AHRQ PSNet (2025).

That is why Lloyd is useful. A retained object is strong evidence that the care process failed somewhere. On its own, it does not identify the responsible defendant, establish the professional standard that applied to that person, or show that the person controlled the circumstances that caused the injury.

What plaintiff counsel should do

Start by reconstructing responsibility, not just documenting the retained item. Put the operative report, nursing notes, count sheets, imaging, radiology communications, and testimony about the search into a single chronology. For each stage, pin down:

• When the item was lost and who knew it was missing
• Who was responsible for searching, and what search was actually done
• Who ordered the imaging, who read it, and what the read said
• Who had authority to reopen or to close, and who made that call
• Whether the count was documented as correct, incorrect, or reconciled

Build the expert plan from that chronology. If the claim depends on a surgeon and a radiologist, retain an expert in each specialty, and make sure each one states the standard that applies to the defendant, not just that the outcome was unacceptable. Draft disclosures that name each defendant and the standard owed. And think carefully before settling with the defendant who had the clearest control, because the claims left behind may be the ones that are hardest to prove.

What defense counsel should do

Do the same reconstruction for a different purpose. A retained item gives the plaintiff a powerful story. Lloyd gives the defense a framework for separating that story from the evidence against a particular client. Ask what your client actually controlled, what duty applied during that window, and whether the plaintiff’s expert has defined that duty or only called the result unacceptable. Look closely at whether the expert is from your client’s specialty and whether the opinions offered at deposition match what was disclosed. Where res ipsa is invoked, push the analysis past the point that a needle should never be left behind and toward whether negligence can be inferred against this defendant.

The takeaway

Some malpractice events do speak for themselves. They do not always say who is liable. In an operating room full of professionals doing different jobs at different moments, proving that the system failed is only the start. The lawyer still has to show who controlled the critical event, what that provider was required to do, and how the evidence connects that failure to the patient’s injury. On either side, the stronger case is the one that answers those questions before asking a jury to.

How Med Legal Pro helps

Retained object and multi-defendant surgical cases often need more than one expert. Med Legal Pro matches attorneys with physician and nurse experts across specialties, including surgeons, radiologists, and perioperative nurses, so that each defendant’s standard of care is addressed by someone in the right field. We work with plaintiff and defense counsel on medical malpractice, personal injury, nursing home, and wrongful death cases.

Call 844-633-5345 or submit your case for a prompt review.

Sources

• Diagnostic X-Ray Physicians, PSC v. Lloyd, Nos. 2024-SC-0216-DG, 2024-SC-0224-DG (Ky. June 25, 2026, modified Sept. 24, 2026)
• Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010)
• Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992)
• Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009)
• Savage v. Three Rivers Medical Center, 390 S.W.3d 104 (Ky. 2012)
• Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944)
• Gibbs V, Romano P. Retained Surgical Items: Causation and Prevention. AHRQ PSNet (2025)

This article is for informational purposes only and is not legal or medical advice. The facts described are as summarized in the court’s opinion. Consult qualified counsel and a qualified medical expert about the specific facts of any case.