Since October 1, 2008, as mandated by the Deficit Reduction Act of 2005 (DRA), the Centers for Medicare & Medicaid Services (CMS) requires Medicare-participating hospitals to disclose all hospital-acquired conditions (HACs). An HAC is defined as a reasonably preventable condition, not present or identifiable at the time of hospital admission, but present during discharge, and generally falling into three categories: (1) those that are high cost, high volume, or both, as determined by CMS; (2) those identified through the International Classification of Diseases, 9th Revision, Clinical Modification coding (ICD-9-CM) as “complicating conditions” (CCs) or “major complicating conditions” (MCCs) that, when present as secondary diagnoses on claims, result in a higher-paying MS-DRG; and (3) those that are reasonably preventable. CMS no longer pay hospitals any increased rate or any cost attributed to care made necessary by HACs as part of the Medicare Severity Diagnosis Related Groups (MS-DRGs). Medicare will also prohibit the billing of these additional incurred costs to the patient.
The HACs covered under the 2009 provision include the following:
- Object left in patient during surgery
- Air embolism
- Blood incompatibility
- Catheter associated urinary tract infection
- Pressure ulcers
- Vascular-catheter-associated infection
- Hospital-acquired injury due to external causes (i.e. falls resulting in fractures, dislocations, intracranial injury, or crushing injury, burns, etc.)
These CMS rules are likely to cause challenges in defending healthcare negligence cases. Plaintiffs’ lawyers are likely to argue that the occurrence of a never event is negligence per se; that the CMS guidelines characterizing these events as preventable are admissible; conduct discovery on patient billing records showing that the incident qualified as a “never event” and that the healthcare providers were precluded from collecting for their services.
It is difficult to know how the CMS rules will impact healthcare negligence litigation. In the mean time, healthcare providers may consider preparing for the impacts of these CMS rules by the avoiding training and encouragement of the use or documentation of the term “never event” in the medical record and, instead, training and encouraging terms such as “adverse event” as used be the American Hospital Association (AHA); by including disclaimer language on billing documents when the use of the term cannot be avoided; and by developing internal/facility “no charge” policies to guide billing decisions about these events. And, obviously, if litigation ensues, traditional means of excluding evidence should be aggressively pursued such as moving to dismiss or strike allegations of negligence per se based on the CMS rules. moving for protective order regarding efforts to discover information and billing documentation classifying the incident as a never event, moving to exclude references at trial to never events or related CMS rules, and alerting fact and fact that this issue may be addressed in depositions.