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

Those actions are apologizing to the patient and or family affected, reporting the event to the appropriate agencies, agreeing to perform a root cause analysis and waiving costs directly related to a serious reportable adverse event.

THE RISK MANAGEMENT RAMIFICATIONS

Although healthcare professions want to prevent serious medical errors and improve patient safety, they are concerned about the possible ramifications of this latest approach.

With this rule from CMS, hospitals are now expected to prevent these 11 conditions from happening at their facilities or else CMS will not reimburse them for the treatment.

"I think there isn't a person alive, especially working in risk management, that wouldn't support the goal of patient safety," says Ellen Venditti, director of corporate risk at Cape Cod Healthcare.

"Before the patient safety movement became popular, the goal was to keep patients safe. The goal was to prevent medical malpractice and the way to do that is to keep patients safe," Venditti says. "Preventing never events isn't anything new for US."

But preventing all of these conditions all of the time may not really be possible.

"We would want those to be preventable," says Jean Turvey, clinical risk consultant at Lockton. "In reality, in my heart, I don't believe they are," she says.

With some of the conditions, there is no argument. Many organizations, for instance, do not bill someone for a wrong-site surgery.

Other conditions, such as pressure ulcers and falls, may not be preventable all of the time. Even with the best care, some patients, because of their medical conditions, may simply be more prone to those types of problems.

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"Even if every practical guideline is followed, there can still be an unexpected outcome," Venditti says. "Some things that are not necessarily preventable are on the list."

The failure to prevent these conditions means not only no reimbursement from Medicare, but it could open the door to an increase in malpractice lawsuits.

LIABILITY IMPLICATIONS

Hospitals and other healthcare professionals have always been at risk for medical malpractice. But if CMS says that this list of 11 hospital-acquired conditions is preventable and that it won't pay for them, this could encourage more patients to bring a malpractice ease against their hospital.

"The hospital liability claims probably increase in frequency as the public becomes more aware that Medicare is not going to pay for conditions it deems preventable," ECRI Institute's Shostek says.

Even more troubling is that these hospital-acquired conditions could become the new strict liability, says Ruth Kilduff, managing principal at Integro Insurance Brokers. In a presentation that Kilduff gave at RIMS earlier this year, she raised the question about whether never events would become events that hospitals could not defend.

In tort law, strict liability is the imposition of a liability on a party without a finding of fault, such as negligence or tortuous intent. The plaintiff needs to prove only that the tort happened and that the defendant was responsible, according to Kilduff.