"Never Events" Pose Liability Risk

Jim Saxton, for HealthLeaders Media , August 14, 2008

Editor's Note: In this monthly forum, attorney Jim Saxton (Stevens & Lee, Lancaster, PA) answers your questions about risk management and liability reduction and provides practical, how-to information on risk-reduction strategies.

Dear Jim,

I have just gotten flooded with emails and concerns about the so called "never events." As I read through from a commentary, I actually find myself getting more concerned. Is this one of those trends that is going to quickly fade in and out?

Betty Jones
Hospital Risk Manager

Dear Betty:

Let me make a fairly broad statement here. I think we should refrain from using the phrase "never events." Never, as defined by a standard dictionary, is an event which "on no occasion can occur," "cannot happen." I am at a loss to know how that concept applies to occurrences in hospitals such as falls or bed sores.

Wouldn’t it be more appropriate, as to some of these occurrences, to refer to these events as "reducible safety issues?" There is little doubt that greater emphasis should continue to be placed on reducing medical errors and unsafe circumstances. This is a complex subject and there are many facets to it. However, the thought that a fall in a hospital should never occur would appear to be flawed. There will be significant financial implications, but this column is not the time to discuss the reimbursement and financial implications. However, there are also clearly liability implications.

We need to remember that the lay public who are reading about these "never events" are our jurors. The sound bites and headlines actually make it sound more than shocking that these events can occur. Let me make it clear that I am firmly onboard with the safety movement. Much of the work of our team has been dedicated to promoting the same. I just think concurrently we have to be evaluating the pragmatic risk management issues.

For now, you should make sure that your committees within the hospital are carefully reviewing the way these events are described. They should carefully look at the reimbursement implications and how communications with patients or family members will occur. You should certainly begin to sort out what is a reimbursement decision (a third party payer’s decision not to reimburse a certain service) and an evidentiary issue which may occur in the courtroom. Your lawyers will be able to address the latter.

This change in reimbursement policy should not be meant to establish a near perfect (or perfect) standard of care. Many plaintiff attorneys would try to argue that these occurrences are negligence or worse. I would argue that that certainly is not the case and, in fact, plan on filing appropriate motions so that terms like "never events" are not even used in court. We need to be prepared to articulate our positions as the first set of legal rulings take place, and appeal when necessary. Those first, well thought-out decisions as to what "never events" mean will be important.

Let’s continue this effort in the name of safety but not assume that this is a reimbursement issue only. If we do, our liability insurers will be paying for known complications of procedures and you will see the soft market harden pretty quickly.

James W. Saxton

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