White Coat Rants on “never events”

by Walter Olson on August 18, 2008

Blood should never clot, microorganisms should never happen, and one doc-blogger is on a tear (Aug. 14, more, Aug. 17) over the sometimes absurd hype being given to the concept:

“Never events” are and always have been “all about the Benjamins.” Look at this news release. The “background” section states that the “never events” were “required” pursuant to Section 5001(c) of the Deficit Reduction Act. Medicare wants to stop paying for things not because they “should never happen” but because it’s trying to save money. The whole “never event” moniker is just a spin they put on the cuts to make it look like someone else’s fault. Do “never events” never occur at government run hospitals? We’ll never know because CMS doesn’t even include government run hospitals on the “hospital compare” list.

{ 14 comments }

1 Ron Miller 08.18.08 at 1:03 pm

This idea has always confused me: doctors are treating patients in a way that defies their conscious to avoid malpractice claims for which they have a clear defense and, most likely, available insurance coverage. These are bad, unethical doctors who put their own interest ahead of their patients, right? Do we all agree on this? If so, exactly how many bad doctors out there are we worried about? Ironically, as I’ve said on my blog a thousand different times in a thousand different contexts, I believe most doctors are ethically doing a great job so I’m less concerned about this byproduct than many of your appear to be.

Ron Miller

2 ER Doc 08.18.08 at 3:12 pm

If you cannot manage to operate on the correct side of your patient’s brain, then you have no business being a neurosurgeon. The patient deserves a significant payment and the doctor and hospital deserve a significant sanction (loss of license etc).
If the government chooses to group a urinary catheter related infection or decubitus ulcer or hospital fall as equivalently serious complications, then we need to decide as a society what payments will be made to these patients and the punishment to be assigned to the doctors and nurses allowing them to occur. I would suggest that patients diagnosed with a bladder infection should each receive $100,000 for their suffering. Foley catheters should only be placed in a surgical suite setting with full sterile drapes by specially trained physicians. There, of course, will be significantly additional costs which will have to be absorbed by the medical system. As we have an unlimited supply of money, this can be accomplished.
Here is what will happen:
1) All patients will get legionella testing on admission
2) All patients will get c. diff testing on admission
3) No bariatric surgery should be performed until we can guarantee 100% that no DVT will be a complication.
4) All foley catheters will be placed in surgical suites
5) No foley catheters can be placed in a nursing home setting until we can guarantee 100% that no UTI will be a complication

Can anybody suggest more?

3 Deoxy 08.18.08 at 4:23 pm

doctors are treating patients in a way that defies their conscious to avoid malpractice claims for which they have a clear defense and, most likely, available insurance coverage.

If there WAS a clear defense (that actually worked 99% of the time), they wouldn’t be doing it. That’s the whole problem we’re discussing, here.

4 Ron Miller 08.18.08 at 4:51 pm

First, let me say that I liked the way you boxed my quote, Deoxy. That was cool. I can’t even figure out how to put up a picture on my blog.

Second, good defenses almost invariably do work as do bad defenses. In my state, malpractice plaintiffs prevail 8% of the time. We are talking about all cases which includes the cases where doctors really do screw up. As we know from common sense and the IOM report, this happens more than we would like. So if you are winning 8% of all cases, what percentage of cases where doctors stick to the reasonable standard of care do you think doctors win? Of course, we live in the real world. People lose cases they should win and win cases they should lose. Of course, doctors have lost some medical malpractice cases they should win. (Some innocent people are on death row which is only about a million times worse.) The question I’m posing is what is the real risk of just sticking to the standard of care. My answer: vanquishing low risk. You may have a different answer.

5 VMS 08.18.08 at 5:40 pm

The geniuses at CMS screwed up in their definition of “never events.” A “never event” should be defined as an event to which there is no defense or excuse whatsoever, whereby a plaintiff would win on summary judgment in a negligence/malpractice suit. Examples: Wrong site surgery. Wrong patient, leaving extraneous objects in the patient, wrong medication or wrong dose (e.g. 300 mg. of morphine instead of 30 mgs.), using the patient as a guinea pig, signing your work by carving your initials into the patient (“Z”) etc.

The CMS’s listing of other events as “never events” is BS. Patients will always be infected by nosocomial infecetions, sometimes by negligence and sometimes because things happen despite the best technique and precautions. See http://video.google.com/videoplay?docid=8157858629486963303 for a spoof on medmal negligence. Most hospitals can benefit from better infection control and reduction of hospital-borne pathogens (especially the resistant type).

The items on CMS’s list that are not truly “never events” should be handled by shifting the burden of proof on the hospitals so that they have to prove, for example, that an infection was not given to the patient through their negligence with a minimum burden of such proof. (e.g. the patient is immunocompromised). In the case of a UTI, CMS should have to pay unless the UTI is allowed to fester to the point that the patient ends up with a kidney infection or sepsis.

Business as usual is not an option; too many patients are needlessly injured. On the other hand, CMS swung the pendulum too far with its no-pay policy for listed “never events.” CMS is correct that there are too many medical errors that are costing the taxpayers billions. Unfortunaltely legitimate complications are swept into the same pile as pure negligence. Medicare’s current policy is not well thought out. Someone needs to look at the implications of any policy before it is implemented.

BTW, what does Medicare paying or not paying for mistakes have to do with “overlawyered?”

6 throckmorton 08.18.08 at 5:43 pm

In regards to ER DOC’s post. I hate to say it my my hospitals are already adding immediate diagnostic testing for legionella, mrsa and urinary tract infections on admission. This runs up the cost and go figure, medicare pays for it!

7 Deoxy 08.18.08 at 6:07 pm

Ron Miller,

Go look up the blockquote HTML function. I’d spell it out for you in this comment, but it would get interpreted as HTML instead! Sorry.

Second, good defenses almost invariably do work as do bad defenses. In my state, malpractice plaintiffs prevail 8% of the time.

Good defenses and bad defenses can both work and fail, that is true. The “100% defense” is thus: not getting sued. Ordering a test to cover something results in not getting sued over that thing. There you go: doctors ARE using their best defense. Getting sued in the first place is a form of punishment for most doctors.

Also, your second statistic (8%) is highly misleading, as it does not include settlements. If I’m guilty of something and getting sued for it, it makes sense for me to settle. If I am suing someone for something that is not their fault, I can settle for next to nothing (what they will likely offer), or I can “roll the dice” in court… And there are many cases in between. The point is that the majority of meritorious cases aren’t included in your “8%” stat, so it’s not a useful number.

There are several OTHER reasons why not number is useless, all documented at this site.

The question I’m posing is what is the real risk of just sticking to the standard of care. My answer: vanquishing low risk. You may have a different answer.

You bet I do – you must be a newcomer on this site.

8 tanj 08.18.08 at 8:08 pm

<blockquote>This is how to do a block quote</blockquote>

9 WhiteCoat 08.19.08 at 4:36 pm

First, thanks to Walter for the link. Talk about an avalanche of hits …
The issues I have are twofold. First, “never events” presently are not an issue with liability – only with payment. Do whatever you want, it is just that insurers and CMS will not pay for the events if they happen. Unfortunately, as evidenced in the Wall Street Journal article (here), those less informed members of the public with hidden agendas make both uninformed and untrue statements that “nearly all hospital infections are avoidable” in order to further their mission.
My fear (and the applicability to the subject matter of “Overlawyered.com” is that the more creative plaintiff attorneys are going to use the moniker “never event” to attempt to enforce strict liability upon healthcare providers when those events occur. If infections or DVTs are a “never event,” then the healthcare provider must be liable for allowing that never event to occur.
VMS has a succinct and eloquent appraisal of this situation, but even creating a rebuttable presumption that a never event is the fault of the healthcare provider will create a significant financial burden on the system as healthcare providers perform all testing necessary to rebut such a presumption.
Here is a summary from comments I posted in response to Ron’s comments on my blog:
Imagine the effect upon the practice of law if malpractice insurers suddenly stated that they would no longer pay for any defensive motions that were lost in court. Attorneys spend dozens of hours creating a motion and then don’t get paid a penny if they lose. The number of motions would dramatically decrease. Over time, the legal standard of care would change to the point that few, if any, pre-trial motions are ever filed. Perhaps pre-trial motions would be deemed frivolous. Judicial economy would be wasted in preparation for trial because no one wants to waste time filing and arguing motions for which they might not be paid when they would be assured of payment for trial preparation.
What would be the effect upon the practice of law?

10 Ron Miller 08.20.08 at 4:48 pm

White Coat, there is no chance of anyone implementing strict liability for these events. “Never events” is obviously a poor phrase because so many of these things happen without medical negligence. The fact that something is a “never event” itself is never going to find its way into a courtroom with a halfway decent judge.

11 WhiteCoat 08.21.08 at 10:36 am

Isn’t that the whole point of Overlawyered.com?
Unfortunately, there are a lot of judges that aren’t “halfway decent.”
I hope that you’re right, though.

12 Deoxy 08.21.08 at 11:01 am

Ron Miller,

You really ARE new here.

There not only IS a chance of these becoming strict liability (at least de facto, if not by law or regulation), I’d give it very good odds that such a thing is actually attempted by lawsuit within the year (if it hasn’t already been), that it will be successful at least once in the next 3 years, and that there will be legislation proposed to that effect within the next 5 years.

I greatly hope to be wrong (and I don’t think the legislation will actually pass), but I don’t expect to be.

13 Ron Miller 08.21.08 at 12:36 pm

Deoxy, I’m a trial lawyer. I have a little feel for this stuff if you will allow me. Let’s make a bet on this: there will not be strict liability for specific medical occurances. You pick the amount.

No one in the medical malpractice community has ever discussed this. Ever. Send me even the suggestion of such a theory. I’ll even allow you to cite a crackpot. Anyone.

14 Ron Miller 08.21.08 at 1:08 pm

WhiteCoat, if you are ever looking for a legal system where bad judges will not be a problem for justice, we are never going to have such a system. Not to go all deep on you, but perfect justice is never going to be found here on earth no matter way you fall on these issues.

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