Never-Event Implications
The Center for Medicare and Medicaid Services (CMS) recently announced federal payor programs no longer reimburses for medical services rendered to treat certain complications of care. Although CMS chose the majority of these complications because they are “reasonably preventable by following evidence-based guidelines,” the national media and patient advocacy groups have adopted the term “never events” to describe them.
Aside from the payment implications, CMS’ new policy affects the liability risk of any person providing inpatient care, regardless of whether a federal payor is involved.
In its press release announcing the new payment policy, CMS stated, “when you enter the hospital for treatment of one medical problem, you don’t expect to leave with additional injuries, infections, or serious conditions that occur during the course of your stay.” Recognizing “some of these complications may not be avoidable,” CMS found “too often patients suffer from injuries or illnesses that could have been prevented if the hospital had taken proper precautions.”
Consequently, “as part of its commitment to improve the quality of care [patients] receive during a hospital stay,” CMS policy is targeted at reducing “hospital-acquired conditions like certain infections, advanced bed sores, or fractures;” and “preventable medical errors, like performing surgery on the wrong side of the body, that should never happen.”
The list of “never events” covered under the CMS payment policy can be organized into three categories: surgical events, medical products and devices, and case management. The following breaks down each category:
Case Management
- Stage III and Stage IV pressure ulcers;
- Air embolism;
- Manifestations of poor control of blood sugar levels; and
- Fracture, burns, joint dislocations, and other injuries occurring from falls or other trauma suffered while an inpatient.
Surgical Events
- Surgery on wrong body part;
- Surgery on the wrong patient;
- Wrong surgery on a patient;
- Retention of a foreign object, such as a sponge or needle, inadvertently left in a patient after surgery;
- Surgical site infection following a coronary artery bypass graft;
- Surgical site infection following bariatric surgery;
- Surgical site infection following certain orthopedic procedures; and
- Deep vein thrombosis or pulmonary embolism following certain orthopedic procedures.
Medical Products and Devices
- Transfusion of wrong blood type;
- Catheter associated urinary tract infection; and
- Vascular catheter associated infections.
It’s easy to see why some of the complications made the list. Wrong-side surgery or surgery on the wrong patient are the quintessential cases where liability is generally uncontested. There is not much one can do to satisfactorily explain to a patient, or a jury, why a surgeon and surgical team operated on the wrong body part.
In other cases, however, such as fatal pulmonary embolus, death can occur even when a patient has been appropriately managed. In fact, medical literature demonstrates a small percentage of patients will develop deep vein thrombosis or pulmonary embolus even after having received therapeutic doses of heparin.
Reasonable Expectations
In any case involving a “never event,” we expect plaintiffs’ attorneys to argue CMS’ reimbursement determination is tantamount to a finding of substandard care. In other words, plaintiffs’ attorneys will argue a physician acted negligently simply because the patient incurred one of the proscribed complications. It’s a compelling argument because the federal government has essentially concluded these complications do not occur if physicians and hospitals pay attention while providing care.
