Med Mal News

Some attorneys representing hospitals and medical practitioners are up in arms over the federal government's new Medicare payment rules, which will soon stop paying hospitals for treatments necessitated by what federal authorities have deemed preventable injuries caused by caregiver errors. Some of these include bed sores, certain catheter-use injuries, injuries due to wrong blood type administration, and in-hospital falls. Defense attorneys say the new payment rules unfairly penalize hospitals for unavoidable injuries to patients. 'The definition of preventable injuries is up in the air at this point,' said Sean Dwyer, a litigator with New York's Havkins Rosenfeld Ritzert & Varriale who defends hospitals and physicians in malpractice suits and regulatory matters. 'There are many instances ' especially when you're dealing with geriatric accidents ' where falls or bed sores aren't preventable.'

They also fear the new rules may hand plaintiff attorneys an uncalled-for advantage in medical malpractice claims. 'Litigators are looking at this and thinking, 'This is going to create a lot of work,” said William Maruca, a health care partner in Philadelphia-based Fox Rothschild's Pittsburgh office who counsels doctors on compliance matters. He notes plaintiffs will likely benefit because they will now be able to argue to juries that Medicare wouldn't pay for a particular injury because the agency deemed it to be a medical mistake, thus proving malpractice. 'It will give plaintiffs' lawyers more ammunition in proving malpractice,' Maruca said. In addition, Maruca expects hospitals will try to protect themselves from potential lawsuits by screening patients before admitting them for elective procedures and rejecting them if they are at increased risk of developing certain of the 'preventable' problems Medicare names. This will undoubtedly cause some patients, like those rejected because they are at high risk for an in-hospital fall, to bring actions under the Americans With Disabilities Act.