Not wanting to be left out of the war on medical errors, Medicare recently stopped reimbursing hospitals for the treatment of certain hospital-acquired conditions, colloquially known as "never events." The decision targeted conditions which are reasonably preventable, and included such things as patient falls and catheter-related infections. Of course, even with the best care, these conditions are not completely preventable. And, in most cases, they are not actually caused by medical errors. But, rather than debate the issue on a case by case basis, Medicare decided that "reasonably" preventable was close enough, and announced that it would not pay for any of the conditions.
Fortunately, under the DRG reimbursement system, the net effect on hospital payment is negligible, with Medicare estimating that the total payment reduction will be 21 million dollars, or about $3800 per hospital per year. And, at least for the moment, the policy has no effect on physician payments.
Although the reimbursement impact is minimal, there are widespread concerns that never events will result in an onslaught of malpractice litigation, with the Wall Street Journal predicting that the impact will be bigger than asbestos litigation. Although the Wall Street Journal is hardly a medical-legal resource, the underlying concern is worthy of examination.
Never events are predicted to worsen the malpractice situation in two main ways. First, it is believed that patients who learn that they have experienced a never event will be more likely to sue. In that patient falls are a never event, let us suppose that a patient falls out of his hospital bed and breaks his arm. Now, regardless of whether we refer to what happened as a never event or as simply falling out of bed, his arm is broken.
And, I am fairly certain that our risk of being sued is not dependent upon whether we say, "Sir, you fell out of bed and broke your arm," or, "Sir, you had a never event and broke your arm." Regardless of how we describe it or what we call it, the fact is that he fell out of bed and broke his arm. And, if he sues us, it will be because he fell out of bed and broke his arm. As a result, I am not persuaded that use of the term "never event," to the extent that anyone even uses it, will make any difference in the risk of being sued.
The second area of legal concern is that lawsuits involving never events will be nearly impossible to defend. The risk is that once a jury hears the words "never event," nothing else will matter and the doctor/hospital will be found liable. While this view of juries has validity, it presumes that a trial is a free-for-all, where attorneys and witnesses can say whatever comes to mind. But, this presumption is not consistent with the Rules of Evidence, which carefully control what the jury hears.
In order to be admissible, a piece of evidence must have probative value. In other words, it must assist the jury in determining whether the plaintiff's accusations are true or false. In addition to having probative value, evidence cannot be overly prejudicial. That is, it cannot create a false inference, distract or mislead the jury. Taking the two requirements together, the general requirement for admissibility is that probative value must outweigh prejudicial effect. Or, in layman's terms, a piece of evidence cannot be presented to the jury unless it is more helpful than it is distracting or misleading.
In weighing the phrase "never event" against this standard, it is readily apparent that it is inadmissible. First, the term "never event" is an oxymoron. The word "event" signifies that something occurred, yet the word "never" signifies that it cannot occur. Taken together, the words create ambiguity; the phrase offers nothing more than confusion which cannot help the jury; and, it is therefore of no probative value.
In addition, the term is exceedingly prejudicial, evidenced by the widespread concern that juries will decide the entire case based on two words, "never event." Such a scenario is not only likely, it is the very definition of prejudicial. Juries are supposed to decide cases after weighing all of the evidence, not after being blinded with sensationalized jargon. Because the term "never event" has no probative value and is very likely to distract and mislead the jury, it is inadmissible under the Rules of Evidence.
A patient who falls out of his hospital bed and breaks his arm has always had the option of suing his doctor, his nurse, and his hospital. And, in order to prevail, he has always been required to establish through credible evidence that he did not receive the standard of care. Whether we now refer to his broken arm as being a never event seems unlikely to affect his decision to sue. And, the concerns that he will be able to "shock" the jury into a favorable verdict by sensationalizing an oxymoron are not consistent with the Rules of Evidence.
