The never ever eleven: the danger that a "never event" can become an exposure against which hospitals cannot defend has some risk managers wondering whether hospitals will be bearing the brunt of strict liability in which juries have only to find that a tort happened

Risk & Insurance, Oct 1, 2008 by Patricia Vowinkel

Summary

* Beginning on Oct. 1, Centers for Medicare & Medicaid Services will refuse to pay for 11 conditions it identifies as "reasonably preventable."

* Healthcare risk managers say the ramifications of these rules may be too punitive and hold hospitals responsible for exposures they cannot control.

* Absent an influx of claims, the new rules are not expected to affect the soft rates in the medical-malpractice marketplace.

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At Cabell Huntington Hospital in Huntington W. Va., some medical personnel have gone back to drawing on paper charts of the human body as a means of documenting a patient's condition upon admission.

"A picture is worth a thousand words," says Paul Smith, vice president and general counsel at Cabell Huntington Hospital. And those pictures might just make the difference between whether the hospital gets reimbursed for the care it provides to patients or not.

As of Oct. 1, Centers for Medicare & Medicaid Services will refuse to pay for a total of 11 conditions it identifies as events that are "reasonably preventable" during a Medicare beneficiary's hospital stay.

Other payors and organizations have also developed similar policies and guidelines as well. Private insurers, for instance, have been way out in front on this.

But Medicare, and Medicaid at the state level, are the biggest purchasers of healthcare in the country, says Kathleen Shostek, senior risk management analyst at ECRI Institute, an independent nonprofit that researches the best approach to patient care.

"So when the government makes this change, people take notice," she says.

While hospital risk managers certainly share in the goal of keeping patients safe and preventing serious medical errors, there has been a great deal of concern about the practical ramifications of these rules and guidelines as well as some of the possible unintended consequences.

Some of these concerns include:

* Whether all of these events really can be prevented all of the time.

* Identification of one of the conditions and when it was acquired.

* The expanding list of "serious preventable errors," which could lead to an increase in medical malpractice claims.

* Whether these events will become the new strict liability.

* The financial ramifications of no reimbursement on hospitals.

* Whether a punitive approach will discourage healthcare professionals from reporting errors.

Risk management experts advise that hospitals take an enterprise approach to managing this risk because it will affect many operations within the facility.

THE CONDITIONS IN QUESTION

This issue has moved into the spotlight with Medicare's decision to no longer reimburse hospitals for the treatment of what it calls "hospital-acquired conditions."

In addition, to not being reimbursed by CMS, the facilities also cannot bill the beneficiary for any charges associated with the hospital-acquired complication.

The conditions for which Medicare will no longer reimburse hospitals for treatment include pressure ulcers; falls and trauma; surgical site infection after bariatric surgery for obesity, certain orthopedic procedures, and bypass surgery (mediastinitis); urinary tract and vascular infections resulting from improper use of catheters; foreign objects left in the body during surgery; air embolisms and blood incompatibility.

CMS has since expanded this list and added three conditions: deep vein thromboses, pulmonary emboli associated with knee and hip replacements and certain manifestations of poor glycemic control.

In addition, Medicare is initiating something called the National Coverage Determination process to review Medicare coverage of three "never events" or egregious hospital errors that theoretically should never happen--surgery on the wrong body part, surgery on the wrong patient and performing the wrong surgery on a patient.

Efforts to bring attention to serious medical errors and improve the quality of patient care have been under way for some time.

In 2001, the Joint Commission came out with a set of patient safety accreditation requirements, which included a requirement to disclose the presence of a medical error. Then in 2002, the National Quality Forum published a report, "Serious Reportable Events in Healthcare," which identified 27 adverse events. Those events, now updated to 28, were considered serious, largely preventable and of concern to both the public and healthcare providers.

According to the NQF, "never events" are errors in medical care that are clearly identifiable, preventable and serious in their consequences for patients.

Other examples of "never events" include retention of a foreign body in a patient after surgery; mismatched blood transfusion or a major medication error.

Some states have enacted legislation requiring reporting of incidents on the NQF list.

In its 2007 Quality and Safety Survey, the Leapfrog Group, an association of large employers concerned about healthcare costs and quality, stated it would give hospitals the opportunity to receive public recognition for agreeing to certain conditions if a never event occurred in their facility.