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

For some hospitals, like Cabell Huntington, that may mean drawing on charts to indicate the site of an infection. In some cases, it may even mean taking photographs to be able to document the patient's condition upon admission.

If the condition was acquired in the hospital, it is then important to determine at what point during the patient's stay so that the appropriate charges are waived.

If for instance, the condition was acquired after the operation, the charges for the surgery may still be legitimate, but if it was acquired during surgery, then those charges might have to be waived.

The risk manager also will need to coordinate with the billing department to make sure problem charts are flagged for special handling, and that bills are coded properly and the right fees are waived.

It is also a challenge for risk managers to make sure that all of these events are being reported.

One of the questions risk managers have to ask themselves is "Are the systems in place to capture the never events and make sure that you know what's going on," says Cabell Huntington's Smith, who is the immediate past president of the American Society of Healthcare Risk Managers.

This new CMS rule, however, could create an incentive for healthcare professionals to avoid reporting these kinds of incidents and could create a challenging image problem.

For instance, it may be unclear whether a hospital that has reported a number of eases of hospital-acquired conditions actually has problems with patient safety or is simply doing a good job of coming forward and identifying these incidents. A hospital that has not disclosed any hospital-acquired conditions, however, may be perceived as hiding something.

"That's where it gets a little scary," says Barbara McCarthy, associate vice president, risk management for Northeast Health Systems. "The punitive approach and patient safety don't go together," says McCarthy, who is also president elect of the Massachusetts Society of Healthcare Risk Managers.

These incidents can also erode the relationship between doctors and hospitals because the CMS ruling affects hospital reimbursement but not the doctor's professional fee, McCarthy says. It also can set up an adverse relationship between the doctor and the patient if the doctor decides not to waive the professional fee.

To be sure, there are still a lot of questions out there on this topic.

"We really don't "know what all the unintended consequences will be," Lockton's Turvey says.

On the Web

* What the CMS has to say for itself.

* Eliminating claims payment and submission mistakes.

* ECRI resources.

www.riskandinsurance.com

PATRICIA VOWINKEL has written about insurance-related issues for more than 10 years and lives in New Jersey. She can be reached at riskletters@lrp.com.