A "never event" is defined by the National Quality Forum (NQF) as a medical error that should never happen. The NQF is a not-for-profit membership organization created to develop and implement a national strategy for health care quality measurement and reporting. The NQF has created a list of "never events" that the forum believes should never occur in a hospital in the absence of negligence.
On October 1, 2008, the Centers for Medicare & Medicaid Services (CMS) will update its payment policies and rates under the hospital inpatient prospective payment system (IPPS), and will no longer reimburse the treatment hospitals must provide to redress eight of these so-called "never events." In addition, CMS has announced its plan to add additional conditions to its "never event" list in fiscal year 2009.
The eight conditions that the CMS has deemed as non-reimbursable "never events" are the following:
Notably, CMS has announced its proposal to include ventilator-associated pneumonia, disease associated with clostridium difficile, and deep vein thrombosis to its list of "never events" for the fiscal year 2009.
Since CMS proposed its plan to eliminate payments for "never events", Aetna, WellPoint, UnitedHealth Group, Cigna, and Blue Cross/Blue Shield have begun to follow suit, and have either implemented similar policies or considered starting them in various market areas. The Bush administration has stated that the CMS reimbursement plan is a big step toward encouraging hospitals to enhance their quality-control measures and cut down on preventable injuries and death. However, both the American Hospital Association and the American Medical Association have taken issue with the categorization of certain occurrences as "never events," and there is concern that hospital admissions will decrease among the sickest patients, most vulnerable to certain hospital-acquired conditions.
The CMS proposal has also stirred up a lot of controversy among private practice physicians and hospitals, who believe that several of the "never events," such as decubitus ulcers, are sometimes inevitable conditions that cannot be prevented, even with the best medical care and treatment available. Another concern is that the CMS billing guidelines will cultivate more malpractice claims, with attorneys citing to the "never event" list as evidence of a deviation of the standard of care.
Typically, to establish a medical negligence cause of action, a plaintiff must prove that a healthcare provider owed a duty to the plaintiff, that the healthcare provider deviated from the standard of care, and that a resulting injury was proximately caused by the deviation from the standard of care. Purtill v. Hess, 111 Ill.2d 229, 241-42 (1986). Unless the healthcare provider's negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a layperson, expert medical testimony is required to establish the standard of care. Purtill, 111 Ill.2d at 242. The standard of care is defined as the same degree of knowledge, skill and ability that an ordinary careful healthcare provider would exercise under similar circumstances. Jones v. Chicago HMO Ltd., 191 Ill.2d 278, 295 (2000).
The Illinois Supreme Court has found that the standards for hospital accreditation, state licensing regulations, and bylaws are admissible at trial as evidence of custom, although it is not conclusive evidence of the standard of care. Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 331-32 (1965). With the advent of "never events", attorneys may now attempt to argue that the CMS payment system should also serve as evidence of the standard of care. However, the CMS payment system was promulgated by a financial administration for the purpose of reducing insurance costs on a national level, and was not designed to represent the custom and practice of healthcare providers within any given community.
In addition, if the court were to allow a plaintiff to admit evidence of "never events" through expert testimony to establish a deviation from the standard of care, this would arguably open the door to allowing defendants to argue that any occurrence excluded from the list is evidence of compliance with the standard of care.
Defense counsel, having the CMS payment system used against their client, would seek to argue that any medical care and treatment that was reimbursed by Medicare or Medicaid was presumptively reasonable and within the standard of care, or else payment would have been denied. However, it is likely that the defense would not be permitted to offer such evidence or make such an argument in light of the evidentiary restrictions imposed on defendants by the collateral source rule (see, Wills v. Foster, ___ Ill. 2d. ___, (Docket No. 104538, decided June 19, 2008) - discussed above in this newsletter.) Then again, the collateral source rule may also serve to bar the introduction of any such evidence by the plaintiff, since the defense would otherwise be unfairly prejudiced by being limited in their cross-examination of the plaintiff's expert regarding the CMS payment system.
The full impact that the CMS payment system will have on malpractice cases is yet to be seen, but attorneys should be prepared to litigate this issue in the future. It would seem fair that the details of the payment system should not be used against medical treaters as a basis for claiming a breach of the standard of case, but this remains uncertain and remains a serious potential risk at this time.
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Jamie Goldstein, an associate in our Chicago office, concentrates her practice in healthcare liability and medical malpractice. While a student at IIT - Chicago-Kent College of Law, Ms. Goldstein received CALI awards for excellence in Professional Responsibility, Criminal Procedure, and Trial Advocacy.
If you have questions regarding this article, please contact Jamie at jgoldstein@querrey.com, or via 312- 540-752. If you have questions regarding Q&H's health care liability practice, please contact Jim Bream, Group Co-Chair, via jbream@querrey.com, or via 312-540- 7520.
