Scott Harding-Lister

Introduction

In the UK, the term “never event” refers to a serious patient‑safety incident that should simply not happen. These mistakes are considered wholly preventable because national guidance and safety recommendations exist to stop them. When such an incident is reported, it signals that a hospital’s systems for implementing safety alerts may not be robust. Many hospitals have made significant progress in improving safety, yet surgical never events persist. Recent reports and news articles highlight continuing concerns over wrong‑site operations, retained foreign objects and incorrect implants. At the same time, pressure on the health service and rising clinical negligence claims underscore the importance of learning from these incidents and ensuring patients receive fair redress.

This blog provides a detailed overview of surgical never events, the legal standards that apply when things go wrong and guidance for anyone contemplating a medical negligence claim. It deliberately avoids quoting precise statistics or costs, recognising that figures can quickly become outdated and are often subject to change. Instead, it focuses on the principles and processes that remain constant, drawing on authoritative definitions and legal context.

What is a surgical never event?

Never events are serious, largely preventable incidents that should not occur when healthcare providers follow existing national guidance or safety recommendations. The policy framework emphasises that even a single incident of this kind is enough to indicate a potential weakness in a hospital’s safety systems. Unlike other patient‑safety incidents, the “never” label signals that there is clear guidance on how to avoid them and that their occurrence reflects a failure to implement that guidance.

Within surgery, three main categories of never event have been identified:

Wrong‑site surgery – operations performed on the wrong part of the body, the wrong side, or even on the wrong patient. Examples from official summaries include cases where a skin lesion was removed from the incorrect site or where injections were administered to the wrong eye. These events are often the result of breakdowns in pre‑operative verification, poor communication and failure to confirm the surgical plan.

Retained foreign objects – situations where surgical instruments, swabs or other items are inadvertently left inside a patient’s body after an operation. When a sponge or tool is forgotten, it can lead to infection, pain and the need for further surgery. Such incidents generally indicate that the theatre team did not complete a reliable instrument count.

Wrong implants or prostheses – insertion of an incorrect device or the wrong size prosthesis. Surgeons might implant a lens designed for a different patient or fit an unsuitable hip or knee prosthesis. These errors stem from failures to cross‑check product labels, patient notes or surgical plans.

While published data show that wrong‑site surgeries remain the most common of the surgical never events, the other categories also continue to occur. Analysts and patient‑safety bodies caution against complacency and emphasise the need for robust systems to prevent even rare mistakes from happening.

Why do never events still occur?

Never events are intended to be prevented through strong systemic barriers. These barriers include mandatory pre‑operative checklists, patient identification procedures, site marking and meticulous instrument counts. When a never event occurs, it usually reflects failures at multiple levels:

• Human factors – fatigue, distraction and pressure in the operating theatre can lead clinicians to misread notes or deviate from protocol. A surgeon might rely on memory instead of confirming the site with colleagues and the patient. Even experienced teams can fall victim to complacency.
• Communication breakdowns – effective surgery requires clear communication between surgeons, anaesthetists, nurses and other theatre staff. Misunderstandings during handovers, unclear theatre briefings or illegible documentation can cause confusion about what procedure is planned and on which patient.
• Checklist misuse – the WHO’s Surgical Safety Checklist and the National Safety Standards for Invasive Procedures set out steps for preventing errors. However, local adaptations may be incomplete and “time outs” can be rushed. Instrument counts may be performed superficially or recorded incorrectly.
• Systemic shortcomings – training deficiencies, understaffing and a culture that discourages speaking up contribute to errors. The Care Quality Commission’s reviews have suggested that barriers sometimes rely too much on human behaviour rather than design. Introducing physical barriers, such as equipment designs that prevent wrong connections and technological supports for instrument counting, can help reduce reliance on memory and vigilance alone.

Legal standards: duty, breach and causation

When a surgical never event occurs, a patient may have grounds for a clinical negligence claim. To succeed, the claimant must prove three elements: that the healthcare provider owed them a duty of care, breached that duty and caused them injury as a result.

Duty of care – surgeons, anaesthetists and hospital trusts owe a duty to exercise reasonable care and skill in treating their patients. This is rarely contested in surgical cases.

Breach of duty – the key question is whether the conduct fell below the standard expected of a reasonable and competent practitioner. The courts traditionally assess this using the Bolam test, which asks whether the defendant’s conduct was in accordance with a practice accepted as proper by a responsible body of medical professionals. In other words, if a substantial number of peers would have acted similarly, the defendant is not negligent.

The Bolitho decision refined this approach. The House of Lords held that even if a responsible body of opinion supports a particular practice, the court must be satisfied that the opinion withstands logical analysis. If the professional consensus lacks a logical basis, the court can find the practitioner negligent. In the context of never events, these tests are straightforward: operating on the wrong limb or leaving a swab inside a patient can rarely be justified by any responsible body of opinion.

Causation – the claimant must demonstrate that the breach caused injury. Wrong‑site surgery typically causes immediate harm through unnecessary removal of tissue or the need for further corrective surgery. Retained foreign objects may result in infection, pain or organ damage. Incorrect implants can impair mobility and necessitate revision surgery. Expert medical evidence is essential to establish how the error led to injury and to set out the prognosis.

Damages – compensation aims to place the injured person back in the position they would have been in had the negligence not occurred. Awards usually include general damages for pain and suffering, special damages for financial losses and, in severe cases, future care and accommodation costs. The calculation is bespoke and depends on the injuries and losses proved.

Investigating a claim and the litigation process

When approached by a patient who believes they have suffered from a surgical never event, a solicitor will follow a structured process:

1. Gathering evidence – obtain all relevant medical records, including the operative note, anaesthetic records and instrument count sheets. These documents form the foundation of any claim.
2. Expert opinion – instruct independent medical experts (such as consultant surgeons or theatre nurses) to review the records and assess whether the care fell below an acceptable standard. Experts also comment on causation and the impact of the injury.
3. Pre‑action protocol – send a letter of claim to the defendant setting out the allegations of negligence and the consequences. The defendant then has an opportunity to investigate and respond. Many cases settle during this stage without court proceedings.
4. Limitation – claims must generally be issued within three years of the date of injury or the date the claimant first had knowledge of the injury. For children, the limitation period runs from their 18th birthday. Solicitors must ensure that proceedings are issued within the time limit to avoid the claim being statute‑barred.
5. Funding arrangements – most claimants fund their cases through Conditional Fee Agreements (“no win, no fee”) backed by insurance. The specifics of funding, including potential deductions from damages, should be explained at the outset. It is prudent to discuss costs carefully, as policies and regulations change over time and can affect recoverable legal costs.

Wider context: patient safety and reform

Clinical negligence litigation and never events do not exist in a vacuum. They reflect the broader quality of healthcare and safety culture. Although this article avoids quoting figures, it is well known that the cost of clinical negligence claims has increased dramatically in recent years and constitutes a significant liability for the Department of Health. Parliamentary committees and patient‑safety groups have criticised the lack of a coordinated strategy to reduce patient harm. They note that hospitals often fail to apologise or involve families when mistakes happen, leading patients to seek legal redress.

Prevention and learning

The primary goal should be to prevent never events from happening in the first place. Healthcare providers can implement several measures:

• Robust checklists – ensure that the WHO Surgical Safety Checklist and the National Safety Standards for Invasive Procedures are followed in full, with deliberate pauses to confirm patient identity, operative site and procedure. Avoid rushing through checklists; they are designed to save lives.
• Effective communication – conduct pre‑operative briefings where all members of the theatre team can voice concerns. Encourage a culture where anyone, regardless of seniority, feels empowered to speak up if something seems wrong.
• Improved training – provide regular simulation training for theatre teams, focusing on human factors and team dynamics. Reinforce the importance of checklist compliance and instrument counting.
• System improvements – invest in technological aids such as radiofrequency identification tagging of sponges and instruments, bar‑coded implants and electronic patient records to reduce reliance on human memory.
• Open reporting and learning – encourage staff to report near misses and adverse events without fear of blame. Analyse incidents to identify systemic causes and disseminate lessons learned across the organisation.

Patients also play an important role. Where possible, they should engage with their surgical team, ask questions, ensure they understand what procedure they are having and confirm the site with the surgeon. While the duty of care lies with healthcare professionals, patient involvement can provide an extra layer of safety.

Conclusion

Surgical never events are among the most serious and distressing types of clinical negligence because they are avoidable with proper systems and vigilance. Their occurrence not only harms patients but also damages public confidence and adds to the burden on an already stretched healthcare system. By understanding what constitutes a never event, how and why these mistakes happen and the legal principles governing compensation, potential claimants can make informed decisions about seeking redress. At the same time, healthcare providers must continue to strengthen safety systems, foster a culture of openness and learning and embrace technological innovations to reduce errors. Though specific statistics may fluctuate, the overriding principle remains constant: no patient should suffer harm from an incident that should never have happened.