The physician's evaluation reveals that when Mr. Jones walks he is a bit unstable, a bit wobbly. The physician writes an order for "out of bed with assistance only". The nurses are aware of the order and before the doctor leaves the hospital he also explained that order to Mr. Jones. Mr. Jones told the physician that he understood and would comply with this order. However, after the doctor left, Mr. Jones decided to go to the bathroom on his own and did not call a nurse for assistance. Unfortunately, he fell and fractured his hip.
Mr. Jones required a total hip replacement. Post operatively he never fully recovered and died within a few months as he developed numerous complications related to the surgery and to his confinement in the hospital. Not long after, a process server entered the physician's office and served him with a medical malpractice "wrongful death" lawsuit.
Not too long ago, the case would have been easily defensible. The physician wrote the appropriate order, the nurse was aware of this order and the patient was given proper informed consent about what he could and could not do. When he did not comply with the physician's order and injured himself, Mr. Jones became directly responsible for his own injury.
But times have changed, and malpractice rules are now different. Litigators should know that since October 1, 2008, hospital falls are on the "never events" list of noncovered hospital-acquired conditions compiled by the Centers for Medicare & Medicaid Services (CMS). CMS adopted the list from one created by the National Quality Forum. Although the original list may have been part of an effort to encourage a safer health system, CMS has a different agenda: reduction of payments pursuant to the Deficit Reduction Act of 2005. Nevertheless, the CMS press release of January 15, 2009, specifically refers to "never events" as "serious, preventable errors in medical care."
Now, suppose that this physician's deposition is being taken. The plaintiff lawyer asks the following string of questions:
- "Are you familiar with the term 'never event'?"
- "Are you aware that the federal government has a list of injuries a patient should never suffer in a hospital, ever?"
- "Our government considers these 'Never Events' to be such serious errors in medical care, and so easily prevented, that Medicare and Medicaid won't even pay the doctor or hospital for treatment needed when these 'never events' occur. Are you aware of that?"
- "Do you know that inpatient falls is on that list, and that it's an event the federal government considers a serious preventable medical error that should never happen?"
How should the physician answer these questions? Is the lawsuit even defensible? The answer is unequivocally yes. The reason is that the policy was established strictly as a reimbursement tool, not as a standard of practice tool. The standard of care is a function of conventional medical and national practice standards, not CMS policy. Despite the verbiage contained in CMS documents, many 'never events' are not preventable even with the best of care and under the best of circumstances that in all ways comport with the standard of practice. Regarding falls, they will occur from time to time unless all at-risk patients are fully restrained physically and/or chemically. But, of course, that is not done and raises other legal issues such as false incarceration, or even battery.
The literature suggests that the best way to defend a case associated with a "never event" is for the attorney to move the court for an order precluding references to the phrase "never event" at trial. But beyond this, the attorney's focus should be on the applicable definition of standard of care in the community where the lawsuit was brought. A physician is required to practice medicine within the applicable standard of care; what a physician in the same specialty would reasonably do under same or similar circumstances. This does not include a guarantee of patient safety and physicians are not de facto legally liable for every injury or adverse outcome that occurs in the hospital. Hospital policies and JCAHO (Joint Commission Hospital standards) are not evidence of the standard that applies in a malpractice case. CMS reimbursement policies should by extension fall into the same category.
For completion sake, the following are other listed 'never events' found under the CMS policies:
1. Retained foreign object after surgery
2. Air embolism
3. Blood incompatibility
4. Catheter-associated urinary tract infection
5. Deep-vein thrombosis/pulmonary embolism related to hip and knee replacements
6. Surgical site infections
7. Stage III and IV pressure ulcers
8. Injuries related to traumatic events, such as electric shock and burns
9. Manifestations of poor glycemic control, including hypoglycemic coma
10. Surgical errors, including wrong procedure, wrong body part, or wrong patient