Written by Short answer: A surgical never event is a catastrophic medical error so clearly preventable that it should never happen in any hospital, anywhere. Illinois law gives victims strong tools to pursue compensation: the res ipsa loquitur doctrine often removes the burden of proving exactly how the error occurred, and both the hospital and the operating surgeon can be held liable. If you or a family member experienced wrong-site surgery, a retained foreign object, or another surgical never event in Illinois, you generally have two years from discovery to file a claim, with an absolute four-year repose deadline. Damages can include the cost of corrective surgery, extended hospitalization, permanent disability, emotional trauma, and lost income.
I have handled surgical malpractice cases for more than two decades, and nothing in this field is more avoidable than a never event. These are not close calls or judgment errors. They are systemic failures – breakdowns in protocols that every accredited hospital is required to follow. When a surgeon operates on the wrong leg, leaves a sponge inside a patient, or performs a procedure on the wrong person entirely, Illinois law provides a clear path to accountability. This guide explains how that path works.
What Is a Surgical Never Event?
The term “never event” was coined by the National Quality Forum (NQF) in 2001 to describe adverse events in healthcare that are so serious, largely preventable, and of concern to the public that their occurrence signals a fundamental problem in patient safety culture. The NQF currently identifies 29 never events across several categories. Surgical never events are the most common type and include the following:
- Wrong-site surgery – Operating on the wrong body part, such as the left knee instead of the right
- Wrong-patient surgery – Performing a procedure on a patient who was not scheduled for that operation
- Wrong-procedure surgery – Completing an entirely different operation than the one consented to
- Retained foreign objects – Leaving a surgical sponge, instrument, clamp, or other item inside the patient after closing
- Wrong implant – Inserting a device of the wrong size, type, or specification
Each of these errors has a defined prevention protocol. That is what makes them never events: hospitals that follow their own procedures do not make these mistakes.
The Universal Protocol and Why It Matters for Your Case
The Joint Commission, which accredits most Illinois hospitals, requires every surgical team to complete what is called the Universal Protocol before any invasive procedure begins. The Protocol has three parts: a pre-procedure verification (confirming the patient, procedure, and site), marking the intended surgical site, and a “time-out” immediately before the incision.
The time-out is a mandatory pause. Every member of the team – surgeon, anesthesiologist, nurses, scrub tech – stops and verbally confirms the patient’s identity, the correct procedure, and the correct site. The entire team must agree before the surgeon picks up a scalpel.
When a never event occurs and the records show that the time-out was skipped, abbreviated, or falsely documented, liability becomes very difficult for the hospital to avoid. That documentation review is one of the first things I do when a client comes to me with a never-event case.
The Illinois Legal Framework: Res Ipsa Loquitur and the Affidavit of Merit
Illinois medical malpractice cases are governed by 735 ILCS 5/2-622, which requires plaintiffs to attach an affidavit of merit to their complaint. The affidavit must be signed by a licensed healthcare professional who has reviewed the case and believes there is a reasonable basis for the claim. This requirement is meant to screen out frivolous suits.
In never-event cases, finding a qualified expert to sign the affidavit is rarely the challenge. The more powerful legal tool is the doctrine of res ipsa loquitur – Latin for “the thing speaks for itself.” Under Illinois law, res ipsa loquitur allows a jury to infer negligence without direct proof of exactly what went wrong, provided three conditions are met:
- The event is of a type that ordinarily does not occur without negligence
- The injury was caused by an agent or instrumentality within the defendant’s exclusive control
- The plaintiff did not contribute to the injury
A retained surgical sponge is a textbook res ipsa case. Sponges do not count themselves. Every surgical team is required to count them before closing. If one is left inside a patient, the inference of negligence is overwhelming.
Retained foreign object cases are among the strongest surgical malpractice claims in Illinois because res ipsa loquitur effectively shifts the burden to the hospital to explain how proper count procedures could have been followed and a sponge still left inside the patient. In practice, no satisfying explanation exists – and juries know it.
Who Is Liable: Hospital, Surgeon, or Both?
One of the most common questions I hear is whether to pursue the hospital, the surgeon, or both. The answer, in most never-event cases, is both.
Surgeon liability is direct. The operating surgeon is responsible for the procedure, the site, and the final count. When the wrong body part is cut or a foreign object is left inside, the surgeon bears personal professional and legal responsibility.
Hospital liability runs on two tracks. First, the hospital is vicariously liable for the acts of its employees – nurses, surgical technicians, and any staff surgeon. Second, the hospital is independently liable for its own failures: inadequate policies, failure to enforce the Universal Protocol, poor training, and understaffing that creates conditions for error.
Even when a surgeon is an independent contractor rather than a hospital employee, Illinois courts have recognized a theory called “apparent agency” – if the patient reasonably believed the surgeon was a hospital employee, the hospital may still be held responsible. This theory has been recognized in Illinois since Gilbert v. Sycamore Municipal Hospital (1993).
Common Surgical Never Events and Their Causes
| Never Event Type | Primary Cause | Key Protocol Failure |
|---|---|---|
| Wrong-site surgery | Failure to mark surgical site, inadequate time-out | Universal Protocol not completed |
| Wrong-patient surgery | Scheduling confusion, inadequate patient ID verification | Pre-procedure verification skipped |
| Wrong-procedure surgery | Miscommunication in OR handoff | Consent and procedure not cross-checked |
| Retained foreign object | Inaccurate sponge/instrument count, fatigue, rushed closure | Final count not completed or documented |
| Wrong implant or size | Poor inventory management, equipment room errors | Implant not verified against surgical plan pre-incision |
Damages Available in Illinois Surgical Never-Event Cases
Victims of surgical never events in Illinois can pursue the following categories of damages:
- Cost of corrective surgery – The expenses to undo what should never have been done, including anesthesia, OR time, and post-operative care
- Extended hospitalization – Additional days or weeks of inpatient care caused by the error
- Permanent injury or disability – When the never event causes lasting harm that cannot be fully corrected
- Lost wages and earning capacity – Income lost during recovery and, if disabled, projected future earnings
- Emotional distress – The psychological impact of discovering a surgeon operated on the wrong part of your body
- Pain and suffering – Physical pain from the original error and subsequent corrective procedures
Illinois does not cap non-economic damages in medical malpractice cases. A prior cap was struck down by the Illinois Supreme Court in Lebron v. Gottlieb Memorial Hospital (2010) as unconstitutional. This means the jury – not a statutory formula – determines what your pain and suffering is worth.
Statute of Limitations for Surgical Malpractice in Illinois
Under 735 ILCS 5/13-212, Illinois medical malpractice claims must be filed within two years of the date the patient knew or reasonably should have known of the injury and its cause. For a wrong-site surgery, that clock typically starts the day the patient wakes up from anesthesia and is told what happened. For a retained foreign object discovered years later on imaging, the clock starts when the object is found.
There is also an absolute four-year statute of repose. No matter when the patient discovers the injury, a malpractice claim cannot be brought more than four years after the date of the act or omission that caused the harm. This repose period has limited exceptions – for example, if the defendant fraudulently concealed the error.
If the victim is a minor, the two-year period does not begin until the child turns 18, but the four-year repose period still applies, calculated from the date of the act. Consulting an attorney promptly after discovery is essential to preserve your rights.
Frequently Asked Questions
Do I need a medical expert to prove a surgical never-event case?
Yes and no. Illinois requires an affidavit of merit from a qualified healthcare professional to file the complaint. However, res ipsa loquitur significantly reduces the burden of proof at trial. You do not need an expert to reconstruct exactly what went wrong – the fact that it happened is often sufficient to create an inference of negligence.
Can the hospital destroy or alter records to hide a never event?
Hospitals are legally required to preserve medical records, and destroying or altering records after litigation is anticipated constitutes spoliation. Illinois courts can instruct juries to draw an adverse inference – meaning the jury can presume the destroyed records contained evidence damaging to the hospital. Acting quickly to send a litigation hold letter is one of the first steps we take in these cases.
What if I signed a consent form? Does that waive my right to sue?
No. A surgical consent form covers the risks inherent in the procedure you agreed to. It does not waive liability for a surgeon operating on the wrong body part, performing a different procedure, or leaving an instrument inside you. No one can consent to a never event.
Can I sue even if a second surgery fixed the problem?
Absolutely. The fact that a corrective surgery was performed does not extinguish your claim – it actually adds to your damages. You can recover the cost of the corrective procedure, any additional pain and suffering it caused, any time lost from work during the second recovery, and any permanent harm that remained even after correction.
How long does a surgical never-event lawsuit take in Illinois?
Many never-event cases settle before or during discovery because liability is difficult for the defense to contest. When a case does proceed to trial in Cook County, you can expect 18 to 36 months from filing to verdict. Factors that affect the timeline include the severity of permanent harm, the number of defendants, and the insurer’s willingness to negotiate in good faith.
Authoritative Sources
- 735 ILCS 5/2-622 – Illinois Code of Civil Procedure, Affidavit of Merit requirement
- 735 ILCS 5/13-212 – Illinois statute of limitations for medical malpractice
- 735 ILCS 5/2-1117 – Illinois modified joint and several liability
Related Guides
- Anesthesia Errors in Illinois Hospitals
- Failure to Diagnose Cancer in Illinois
- Wrongful Death and Survival Actions in Illinois
- Pain and Suffering Damages in Illinois
If you or a family member experienced a surgical never event at an Illinois hospital, call Phillips Law Offices at (312) 346-4262 for a free consultation. We review these cases at no charge and collect no fee unless we recover compensation for you.
