“Never Events” That Are Anything But “Never”

Even the most routine surgeries can be frightening for patients. Surgery means entrusting your health and body to the hands of another human being who is often, aside from the lead-up to surgery, a relative stranger. Whether they require surgery because of a trauma event, like a vehicle collision, or to remedy a naturally occurring condition, patients must trust that the medical professionals who will treat them from start to finish will be careful, attentive, and coordinated. 

What Is a Surgical Site Error?

Any surgery comes with risks and challenges, but we trust surgeons because of their expertise. While the majority of surgical procedures are performed without error, an estimated 1 in 100,000 surgeries involve a surgical site error. The true number may be higher.

These are preventable medical mistakes that generally occur when surgery is performed on the wrong side or site of the body, the wrong surgical procedure is performed, or surgery is performed on the wrong patient. In about 1 out of 10,000 cases, an object or instrument is left in the patient, which can cause severe complications, such as infection.

Why Are Wrong Site Errors Called “Never Events?”

These errors are so egregious—and avoidable—they are referred to as “never events.” Surgical site errors may also include any invasive procedure, such as surgery, that exposes patients to more than minimal risk, including procedures performed in non-operating room settings.

Any of these wrong site errors are likely to qualify as surgical malpractice because of the negligence involved. When it comes to a “never event” and your health, you should never have to pay the price for this kind of mistake. 

What Qualifies as a Surgical Site Error? 

Unlike some other forms of medical malpractice, in which patients have considerable doubts about whether or not their trusted medical professionals were negligent, the decision to move forward may be clearer when it comes to surgical site malpractice. However, sometimes patients are not aware that a medical malpractice case may be an option even if the surgery was completed successfully.

A surgical procedure begins when any of these occur:

  • Tissue is punctured.
  • An incision is made.
  • An instrument is inserted into the tissue or an organ.

Even if the procedure is immediately corrected, a procedure that begins at the wrong site is still an error. Sometimes, a lack of clear diagnostic tests or imaging may result in surgery that takes on a more exploratory approach before the surgeon is able to accurately perform the necessary medical procedure. This is not the same as a surgical site error.

What Causes Surgical Site Error Medical Malpractice?

If you have ever had a surgical procedure, you may have been confused or even exasperated at the number of times the preoperative team asked you the same questions about your procedure, such as:

  • Your name
  • The surgical site
  • The procedure
  • Your consent 

Likely, your nurse and anesthetist were asking you questions from the World Health Organization’s Surgical Safety Checklist—a process that would have continued after you were no longer conscious to witness it. This checklist includes postoperative procedures, including counting surgical equipment to ensure that nothing has been left behind inside you, such as a sponge, which accounts for 70% of the cases of retained surgical equipment. In two-thirds of retained equipment cases, complications are severe, and can include sepsis and even death.

The causes of these “never events” often involve the  failure of providers to follow routine systems but may include other forms of serious negligence:

  • Poor preoperative planning. Whether on the part of the surgeon or the rest of the team, it is crucial that the prep work be done correctly, from the notations in patients’ charts to the marking on the skin.
  • Poor communication. Communication before, during, and after the procedure must be thorough to the point of being redundant, according to best practices. 
  • Neglect. Sometimes, surgeons are simply not as careful as they should be or simply do not believe they need to follow the practices of the WHO surgical checklist or other systematic guidelines that are put in place to ensure patient safety. 
  • Fatigue. Surgeons and other medical professionals, especially at hospitals, work notoriously long shifts. And tired people are more likely to make mistakes.
  • Drugs and alcohol. Whether to combat fatigue or cope with the stressors of the job or other personal factors, surgeons sometimes turn to substance use, which can have a devastating effect on their patients.

In some cases, the surgeon is not to blame—the negligence that led to the surgical site error was committed before the patient was ever in an operating room. Sometimes, it takes some digging to find out why the error happened, but a strong, experienced legal team will be tenacious enough to find out.

How Are Surgical Site Error Malpractice Cases Resolved?

The first step toward the resolution of a medical malpractice case is to reach out to an experienced medical malpractice lawyer. Malpractice lawsuits can be long and complex and, without expert legal help, they can become painfully overwhelming for you and your loved ones. 

Because the statute of limitations can be short, it is vital that you reach out to Janet, Janet & Suggs for a consultation as quickly as you are able after experiencing a surgical site error. An initial consultation isn’t a commitment, and it will help you get all the facts you need in order to come to a decision without pressure.

If your case is eligible for legal liability, your malpractice lawyers will work to get you justice, whether that is a settlement or a judgment in your favor. Compensation for these cases will vary depending on a number of factors including:

  • Doctor and hospital bills—past, current, and future
  • Lost income—past, current, and future
  • Pain and suffering
  • Disfigurement and scarring
  • Quality of life concerns

In a case against a government-employed healthcare provider, JJS reached a settlement of $13 million after poor postoperative care led to brain damage and cerebral palsy. Though surgical site errors stem from malpractice during the actual operation, these cases are, from a legal perspective, very similar.

While the circumstances of your case may vary, JJS’s commitment to fighting for victims of medical malpractice remains consistent.

Why Should You Choose Janet, Janet & Suggs?

For over 40 years, the team of Janet, Janet & Suggs has championed those impacted by the errors of healthcare professionals, achieving hundreds of millions of dollars in record-breaking verdicts and settlements for our clients. Our experienced attorneys and network of qualified medical experts will help you navigate the complex process of your medical malpractice case to seek justice and fair compensation for your injuries.JJS operates on a contingency fee basis, meaning we collect no fees unless we win your case. Contact us today for a free, no-obligation case review.


 William R. “Topper” Cramer

Reviewed by:
William R. “Topper” Cramer, RN, MBA, MS, CCRN, CFRN, EMT-P
Legal Nurse Consultant | Nurse Paralegal

Topper has been involved in emergency, transport, and critical care medicine since 1978 when he became an EMT in high school. A United States Air Force veteran, he remains active as a pre-hospital RN/paramedic, certified flight nurse, and critical care nurse. In addition to his professional role as a nurse consultant/nurse paralegal, he is the Chief of Operations at Walkersville Volunteer Rescue in Frederick County, Maryland. READ FULL BIO

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