The Relevance of 'Never Events' in Medical Malpractice Litigation

On Feb. 8, 2006, President George W. Bush signed the Deficit Reduction Act of 2005, Section 501(c) of Pub. L. 109-171, instructing the Department of Health and Human Services (the Department) to create its own list of Never Events, so that Medicare payments could be decreased when preventable complications occur in hospitals. To that end, on Oct. 1, 2008, the Centers for Medicaid and Medicare Services (CMS) identified eight categories of complications for which it would no longer reimburse hospitals if they developed during a hospital admission. With later expansions, the list now includes:

• foreign objects left in the body after surgery;
• air emboli;
• infusion of incompatible blood;
• falls and traumas;
• catheter-associated urinary tract infections;
• mediastinitis after coronary-artery bypass grafting;
• certain infusion associated infections;
• pressure ulcers;
• poor glycemic control;
• deep-vein thrombosis or pulmonary embolism associated with knee or hip replacement surgery; and
• certain orthopedic and bariatric surgical-site infections.

Additional Considerations

In January 2009, CMS went further and indicated that it would cease payments to hospitals and physicians when surgery was performed on the wrong patient, when the wrong surgical procedure was performed, or when surgery was performed on the wrong side or wrong body part. These actions of federal regulators were said to be an effort to “align financial incentives with the quality of care, thereby promoting both quality and efficiency.” Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009).