Indianapolis Surgery Malpractice Attorney

You might think that a surgical “never event” is one that never happens. On the contrary, never events are surgical errors that should never happen but which do, unfortunately, all too often. About 80 times each week, surgeons and other medical personnel make surgical mistakes that are so serious that they fall into this category, according to the National Practitioner Data Bank. These preventable mistakes account for more than $1.3 billion in medical malpractice payouts each year, studies show.

If you or your loved one has been the victim of a preventable surgical error, Indiana malpractice attorney Mike Stephenson can help recover compensation for your having to experience a surgical outcome that should never have happened. Successfully litigating medical malpractice cases in Indiana since 1981, McNeely Stephenson has the experience necessary to seek justice from the medical establishment and malpractice insurers. Call our law firm at 1-855-206-2555.

Example Malpractice Cases


In general, never event surgical errors fall into three categories:

  • Wrong-site / wrong-procedure
  • Wrong-patient surgery
  • Instruments left behind.

Wrong-site / Wrong-procedure Surgery

Wrong-site surgery (WSS) is when a surgeon operates on the wrong area of the body, such as on the left side rather than the right side, or on the incorrect site, such as operating on the wrong level of the spine.

The Joint Commission is an independent, not-for-profit organization which accredits and certifies health care organizations and programs in the United States. The number of wrong-site surgeries reported to the Joint Commission increased from 15 cases in 1998, to a total of 592 cases reported by June 30, 2007. Most occurred in orthopedic or podiatric procedures, general surgery, and urological and neurosurgical procedures.

Surgery performed on the wrong site is often compensable under malpractice claims. In fact, a study published by the U.S. Agency for Healthcare Research and Quality reports that 79 percent of wrong-site eye surgery and 84 percent of wrong-site orthopedic claims resulted in malpractice awards. The Indiana law firm of McNeely Stephenson has handled numerous lawsuits brought because of a wrong-site surgery.

Wrong-Patient Surgery

As one might guess, wrong-patient surgery occurs when a doctor operates on the wrong person. This is most often caused by a miscommunication error or carelessness when two patients have similar last names. The harm caused by this sort of surgical error is inestimable.

Instruments Left Behind

Of the estimated 80 never events that happen each week, about 40 are wrong surgeries; the other 40 involve sponges, towels, needles and other items used in surgery that are left behind in patients. This is sometimes referred to as “foreign retention.” Surgical sponges are the items most often left behind and the abdominal cavity or thorax is the most frequent location.

The retention of a foreign object may cause serious patient harm and often requires further medical treatment at a significant cost.

Surgical Error Causes

Indianapolis Surgery Malpractice

Surgical mistakes are not made only by doctors fresh out of medical school, nor are they a symptom of aging out of the profession. A Johns Hopkins University School of Medicine study showed that surgical mistakes are distributed across the physician age spectrum, with 36% of them happening among surgeons ages 40 to 49; nearly 30% occurring with surgeons between 50 and 59. Less than 25% happened among surgeons 39 and younger, and less than 15% were by surgeons 60 or older.

Communication issues are the predominant underlying factor. To prevent wrong-site and wrong-patient procedures, the Joint Commission in 2004 mandated a three-step process known as the Universal Protocol. The three principal components of the Universal Protocol include a preprocedure verification, site marking, and a time out. Obviously, the Universal Protocol does not prevent all never events.

While most surgeons routinely mark the surgical site, sometimes it is marked too far away from the incision spot to be clearly seen or the ink used to mark the spot fades when the skin is cleaned and prepped for surgery. The North American Spine Society calls for adding an additional warning such as “No” on the incorrect site and marking the exact site and side of the spine with a radiopaque indicator.

The surgical time out should be conducted in the operating room before the procedure begins. It should involve the entire medical team and verify on a document such as a checklist who the patient is, the correct side and site of the procedure, and agreement on the procedure to be done. If there are any differences in staff responses during the time out, the operation should not begin until they are cleared up.

How We Can Help

Indianapolis Medical Lawsuit

Surgical mistakes often require corrective procedures. These can be costly and cause more pain and suffering than the original surgery. You may be entitled to compensation for your past and future medical expenses, mental anguish and physical disabilities caused by the surgical error. Surgical mistakes can have serious consequences. Estimates are that 6.6% of the instances of surgical error resulted in the death of the patient, and 33% resulted in permanent injury.

A medical malpractice lawsuit requires an accomplished attorney who has experience in documenting the error(s) and putting together a compelling case through witness interviews and expert testimony. If you are suffering from a surgical error that never should have happened, hand the worry over to us and let our resources back you up.

You should be mindful, however, that there is a statute of limitations, or deadline, for filing medical malpractice claims. Indiana Code § 34-18-7-1 requires a medical malpractice claim be filed within two years of the negligent act or within two years from its discovery, based on when a reasonably diligent person would have discovered it.

At McNeely Stephenson, we believe justice matters. Call us at 1-855-206-2555 or use our online contact form to take the first step.