Wrong-site or Wrong-procedure Surgery Claims (Never Event)

What is wrong-site or wrong-procedure surgery?

While the terms might seem self-explanatory, in a medical negligence context, the distinctions are specific. These errors occur when the checks designed to protect patients are missed or ignored.

We can break these failures down into three main categories:

• Wrong-site surgery: This happens when a procedure is performed on the wrong side of the body (laterality) or the wrong specific area.
• Wrong-procedure surgery: This occurs when the patient is prepped and the surgery begins, but the operation performed is not the one the patient consented to.
• Wrong-patient surgery: In rare but devastating cases, a patient undergoes a procedure intended for someone else entirely, usually due to identification failures.

Common real-world examples

To help you understand how these concepts apply to actual medical scenarios, here are common examples seen in clinical negligence claims:

• Wrong side: A patient consents to surgery on their left kidney, but the surgeon operates on the right kidney. This can apply to limbs, eyes, ears, or ovaries.
• Wrong level: This is particularly common in spinal surgery. A patient may require decompression at the L4/L5 level, but the surgeon operates at the L3/L4 level. This means the healthy part of the spine is damaged while the original problem remains untreated.
• Correct site, wrong operation: A patient requires a diagnostic arthroscopy (investigation of a joint) but undergoes a full joint replacement or ligament repair that was not agreed upon or clinically indicated at that time.
• Correct operation, wrong implant: The surgery itself proceeds as planned, but the wrong size or type of prosthesis or implant is used. For example, inserting a hip replacement component that is incompatible with the patient’s anatomy, or placing the wrong intraocular lens during cataract surgery.

Why wrong-site / wrong-procedure surgery is classed as a “Never Event” in Ireland

You will often hear the term “Never Event” used to describe these surgical errors. This is a recognition by the medical community that these incidents are entirely preventable.

In Ireland, the Health Service Executive (HSE) formalises the concept of “never events” through a list of Serious Reportable Events (SREs). Wrong-site and wrong-procedure surgeries are consistently at the top of this list.

The reasoning is simple: hospitals have strict, standardised safeguards,such as safety checklists and site-marking protocols,specifically designed to stop these errors. Because these barriers are in place, an error of this nature is not viewed as an unavoidable accident. Instead, it is classed as a fundamental failure of the hospital's safety systems.

When such an event occurs in a public hospital, it triggers a mandatory reporting protocol to the State Claims Agency and usually requires an immediate internal investigation.

Never event vs recognised complication

If you are considering a legal claim, it is vital to distinguish between a never event and a standard medical complication.

• Recognised Complications: Every surgery carries risk. Issues like infection, heavy bleeding, or a reaction to anaesthesia are known risks. You are typically warned about these and accept them when you sign your consent form. If a complication happens, it does not automatically mean the surgeon was negligent, provided they managed it correctly.
• Never Events: Operating on the wrong body part is not a risk. You do not sign a consent form agreeing to the possibility that a surgeon might remove the wrong organ or insert the wrong implant.

This distinction is central to a medical negligence claim. While complications can occur even with excellent care, a wrong-site surgery generally implies that the required standard of care was simply not met.

How these errors happen

It is rarely the fault of a single individual. These errors are usually the result of a chain of events where multiple safety barriers are breached. In a busy hospital environment, small lapses can accumulate, leading to a significant error.

Here is where the safeguards typically break down:

• Before surgery: Errors can originate days or weeks before the operation. Inaccurate referral letters, scheduling errors on the theatre list, or incorrect data on the admission forms can set the team on the wrong path before the patient even arrives.
• Consent and site-marking: If the consent form is ambiguous (e.g., stating "hernia repair" without specifying "left" or "right"), the risk increases. Crucially, the surgeon is required to physically mark the operative site with a permanent marker while the patient is awake and alert. If this step is skipped or done incorrectly, the final barrier is removed.
• In theatre: The surgical team is supposed to pause for a "Time Out" immediately before the knife touches the skin. This is a verbal confirmation of the patient, the procedure, and the site. If the team is rushed, distracted, or if the culture prevents a junior nurse from speaking up when they notice a discrepancy, the error proceeds.
• Implants and instruments: Errors occur when the specific implant requirements are not cross-checked against the patient's notes and imaging. This can lead to the wrong lens, hip stem, or screw being inserted.
• Communication and human factors: High-pressure environments contribute to errors. Factors such as shift changes (poor handover), parallel theatre lists (surgeons moving between rooms), or patients with similar names being treated on the same day can all lead to catastrophic mix-ups.

Surgical safety checks in Irish hospitals

To prevent these "Never Events," Irish hospitals (both HSE and private facilities) utilise the World Health Organization (WHO) Surgical Safety Checklist. This is the industry standard for patient safety.

The staged safety process

The process is divided into distinct phases, each requiring verbal confirmation by the team:

• Sign In: Occurs before anaesthesia is induced. The team confirms the patient’s identity, the procedure site, consent, and whether the site has been marked.
• Time Out: Occurs immediately before the incision. The entire team stops. They verbally confirm the patient’s name, the specific procedure, the incision site, and that correct imaging (X-rays/MRI) is displayed.
• Sign Out: Occurs before the patient leaves the operating theatre. The nurse counts instruments and sponges to prevent retained foreign objects, and the team confirms the procedure that was actually recorded matches the plan.
• Briefing and Debriefing: High-performing teams hold a briefing at the start of the day to discuss specific patient risks and a debriefing at the end to discuss what went well or what needs reporting.

When followed rigorously, these checks create a defence in depth. They are designed to prevent:

• Wrong site surgery
• Wrong procedure
• Retained foreign objects (leaving swabs or instruments inside the patient).

If you have suffered an injury because these checks were skipped or performed casually, you may have grounds for a claim.

What patients often experience afterwards

The aftermath of wrong-site or wrong-procedure surgery goes far beyond the physical injury. At Michael Boylan LLP, we recognise the multi-layered impact this has on your life.

• Physical consequences: You may suffer pain and disability from the unnecessary surgery on a healthy body part. Furthermore, the original condition remains untreated, meaning you may still be in pain and require the surgery you were supposed to have in the first place.
• Psychological impact and loss of trust: Discovering that a surgeon operated on the wrong area can be traumatising. Many clients experience anxiety, depression, and a deep fear of future medical treatment, making it difficult to return to the hospital for necessary corrections.
• Practical disruption: You face a longer recovery time than anticipated. This often leads to extended time off work, loss of earnings, and increased dependency on family members for care and assistance at home.

If you suspect something has gone wrong

If you wake up from surgery and suspect an error has occurred,for example, the dressing is on the wrong leg, or the pain is in an unexpected location,it is essential to act calmly but decisively.

Your first step is to establish what the hospital believes happened. Sometimes, communication is simply poor, but in other cases, genuine errors are being realised by the staff in real-time.

Key questions to ask the hospital or consultant

You have the right to ask questions. We suggest a non-confrontational but direct approach:

• "Can you confirm exactly what procedure was performed?"
• "Does this match the consent form I signed?"
• "Why is the incision on this side?"
• "Has an incident report been filed?"
• "What is the plan to correct this issue?"

Prioritising medical follow-up

While legal considerations are important, your health is the priority. If a wrong-site / wrong-procedure surgery has occurred, you may still need treatment for your original condition. You should seek guidance on how to manage your recovery safely. If you have lost faith in the original surgical team, you are generally entitled to request a referral to a different consultant or transfer to another hospital for the corrective treatment.

When wrong-site or wrong-procedure surgery may amount to medical negligence

Not every bad outcome is negligence, but wrong-site surgery is one of the strongest indicators that a breach of duty has occurred. To succeed in a medical negligence action in Ireland, three main elements must be established.

1. Duty of Care: The hospital and surgeon owed you a duty to take reasonable care for your safety. This is rarely in dispute in surgery cases.
2. Breach of Duty: It must be proven that the care you received fell below the standard expected of a reasonably competent medical professional. Operating on the wrong site is difficult to defend and is almost always considered a breach of duty.
3. Causation: This is often the most complex part. We must prove that the error caused you harm. For example, if the surgeon made a small incision on the wrong side, realised the error immediately, closed it, and proceeded correctly, the "harm" might be minor. However, if they removed a healthy kidney, the causation and harm are massive and undeniable.

Evidence and documentation that usually matters most

To investigate a claim, your solicitor will need to build a comprehensive picture of what happened. This relies heavily on the medical records. Under the Data Protection Acts and GDPR, you have a right to request a copy of your full medical file.

Medical records to request

• Consent form: This is critical. It proves what you agreed to. If the form says "Left Knee" and they operated on the "Right Knee," the error is documented in black and white.
• Site-marking notes: Records should show who marked the site and when.
• Operation note: The surgeon's detailed report of the surgery.
• Anaesthetic record: This often contains timelines of the "Sign In" and "Time Out" checks.
• Nursing notes: Nurses often document issues or discussions that surgeons omit.
• Implant logs: Stickers and serial numbers of devices used.
• Radiology: X-rays or scans taken before and after surgery.
• Discharge summary: The document sent to your GP.

Hospital incident reporting and reviews

If a Never Event occurs, the hospital should generate an incident report or conduct a Systems Analysis Review. These internal documents are vital as they often contain admissions of error and identify exactly which safety protocol failed. We will look to secure these documents early in the process.

Personal timeline and supporting material

We advise clients to write down their own timeline of events while memories are fresh. Who did you speak to? What was said during the consent process? Did you point out the correct side to a nurse beforehand? Photographs of the incorrect surgical site (if visible) can also be powerful evidence.

The wrong-surgery claim process in Ireland

Bringing a claim for wrong-site surgery in Ireland involves specific procedures depending on where the surgery took place.

If your surgery was in a public HSE hospital, the defendant is usually the HSE. These claims are managed by the State Claims Agency (SCA). The SCA handles claims on behalf of the State. While they have a mandate to manage claims efficiently, they still require strict proof of liability and causation. We deal directly with the SCA to negotiate your case.

Meanwhile, if your surgery was in a private hospital, the claim is usually brought against the consultant surgeon directly, and sometimes the hospital as well. Consultants are typically indemnified by the Medical Defence Union (MDU) or other insurers. These bodies have specialised legal teams. It is essential to have a solicitor who is experienced in dealing with these specific defence organisations.

Time limits for wrong-surgery cases

In Ireland, strict time limits apply to commencing legal proceedings.

Generally, the Statute of Limitations allows two years to bring a claim. However, in medical negligence, this two-year clock starts from:

• The date the injury occurred; OR
• The "date of knowledge", the date you first realised (or should have realised) that your injury was significant and attributable to the medical treatment.

In wrong-site surgery, the date of knowledge is often immediate, so the two-year limit usually starts from the date of the operation.

However, if the patient is under 18, the two-year time limit does not begin until their 18th birthday. However, parents can (and often should) bring a case on their child’s behalf immediately. Also, different rules apply if the patient lacks the mental capacity to instruct a solicitor.

How Michael Boylan LLP approaches wrong-surgery cases

We know that no amount of compensation can undo a surgical error. However, a successful claim can provide financial security for future care, cover loss of earnings, and acknowledge the suffering you have endured.

• Specialist focus: We are not a general practice. We dedicate our practice to medical negligence and litigation. We understand the surgical checklists, the hospital protocols, and the legal standards required to prove a breach of duty.
• Structured investigation: We don't guess. We methodically gather the paper trail,from the referral letter to the recovery room notes,to pinpoint exactly where the system failed you.
• Independent experts: To win a case, we must have a report from an independent expert surgeon confirming that the care you received was negligent. We have access to a network of leading UK and international medical experts who provide objective opinions.
• Client-centred process: We communicate clearly. We avoid legal jargon where possible and ensure you understand every step of the journey. We approach every case with the empathy and respect you deserve.

FAQs

Is wrong-procedure surgery the same as wrong-site surgery?

No, though they are related. Wrong-site means the correct operation was done on the wrong part of the body (e.g., right knee instead of left). Wrong-procedure means the surgeon performed a different operation than the one planned (e.g., a removal of an organ instead of a repair), even if it was on the correct body part.

What if the hospital says it was a complication?

Hospitals may sometimes use the term "complication" broadly. However, operating on the wrong site is rarely a valid complication; it is almost always a preventable error. It is vital to have a solicitor and an independent medical expert review the records to determine the truth.

What records should I ask for first?

You should request your complete medical file under the Data Protection Acts. Specifically, ask for the Operation Note, the Anaesthetic Record, and the Consent Form. These three documents usually reveal if a discrepancy occurred between what was planned and what was done.

Can a wrong implant be part of a wrong-procedure error?

Yes. If a surgeon inserts an implant that is the wrong size, material, or type for your specific anatomy, and this was due to a failure to check the records or measure correctly, it can be considered a negligent error similar to a wrong-procedure event.

What happens if my consent form doesn’t match what was done?

If the operation note describes a procedure different from the one on your signed consent form, and there was no life-threatening emergency justifying the change, this is a serious issue. It may form the basis of a claim for lack of informed consent or trespass to the person, alongside negligence.

Do “never events” have to be reported internally?

Yes. In Irish public hospitals, HSE policy mandates that "Never Events" (Serious Reportable Events) must be reported to the National Incident Management System (NIMS) and an investigation must be launched. You are entitled to know the outcome of this investigation.

How long do I have to take legal advice in Ireland?

You generally have two years from the date of the surgery (or the date you discovered the error) to issue legal proceedings. Given the time required to investigate, you should seek legal advice as soon as you suspect negligence.

Can I change solicitors if I have already started making enquiries?

Yes. If you feel your current solicitor does not have the specific medical negligence expertise required for a wrong-site surgery case, you are entitled to switch to a specialist firm.

Get Expert Advice on Your Surgical Claim

If you or a loved one has suffered due to wrong-site or wrong-procedure surgery, you need a legal team that understands the complexities of the operating theatre.

At Michael Boylan LLP, we provide the expertise and support necessary to uncover the truth and secure the justice you deserve.

Contact us today to discuss your experience in confidence.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.