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    Friday, January 22, 2010

    Hospitals And Medical Staffs Have Failed To Be Effective In Reducing Medical Errors

    A recent Medicare policy change has brought into critical focus the fact that hospitals and medical staffs have failed to be effective in reducing medical errors. The Centers for Medicare and Medicaid Services (CMS) announced that it would no longer pay hospitals for the extra costs of treating injuries, infections, or other complications caused by preventable errors (never events). At the same time that hospitals are encountering this looming payment restriction from Medicare, they also are confronting the possibility of payment restrictions from commercial payors. Cigna, Aetna, Health Net, and Health Partners are among the payors that have indicated they are considering making nonpayment for “never events” a standard part of their provider contracts.

    There are significant potential liability concerns that may arise from the new CMS payment plan and from similar state and commercial plans.

    Not all of the qualifying "preventable" complications selected by CMS are comparable in terms of their preventability, nor are they entirely within the control of the hospital or its medical staff. It is without question that instruments or sponges left behind after surgery should be never events. However, current best efforts may not entirely prevent vascular infections from catheter use, for example. Similarly, the amount of effort and expense required to prevent the formation of pressure ulcers is far greater than that required to avoid retained instruments. This alone could lead hospitals to alter admission policies and practices. The aspect of the Medicare never event payment policy change requiring hospitals to report Present on Admission Indicators may make it inevitable.

    This Heller article suspects that plaintiff’s attorneys may well argue that never events should be viewed as res ipsa occurrences or, at the least, that they should always be viewed as representing below standard care. This would appear to be an excellent example of the law of unintended consequences as "the mere designation of never events will likely result in both more numerous and more valuable plaintiffs’ verdicts nationwide."

    Some sets of these never events, for example those recently approved by the Washington State Hospital Association and the Washington State Medical Association, employ the modifier "serious," penalizing hospitals only for "serious disability associated with a fall" or "serious disability from medication error," without, not surprisingly, offering criteria for defining the term "serious."

    This may then be left for the legal system to define. It is not clear how far out in time from the never event the ban on hospital charges extends. On the one hand, says Heller, if a patient sustains a hip fracture from an in-hospital fall, it is clear that the hospital may not bill for the fracture repair. If, on the other hand, three months post-discharge, the patient develops what appears to be a nonhospital acquired infection at the hip repair wound site and the patient is readmitted, who pays the bill? What if a patient develops a deep pressure ulcer in the hospital (clearly, not reimbursable) and is discharged when the ulcer appears to be healed, but is readmitted after two weeks at home with an ulcer at precisely the same site. Who pays? It is possible to develop many confusing and confounding scenarios that may evolve from the new CMS rule and its progeny, and the end effects are not in sight.

    Please remember, as with all our articles we provide information, not medical advice.
    For any treatment of your own medical condition you must visit your local doctor, with or without our article[s]. These articles are not to be taken as individual medical advice.

    *Tune in later for Reducing Medical Errors.

    Deepen your understanding of "medical malpractice"...

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