North Carolina Trial Law Blog

I read an interesting newspaper article over the weekend by Robert Pear for the New York Times News Service.  Read the article here.  Another good version of the article can be read here.

The article says that the Bush administration "will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals."  The new rules go into effect in October, 2008

Charges can not be passed down to patients. The administrative rule stems from a 2006 law but the implementation was delayed for fear that hospitals would pass along the charges to patients.

Under the rules, the charges CAN NOT be passed along to the patient.

Common Errors and Infections.  There is no indication exactly how the program will determine which fees are the results of preventable errors.  However, it does look like certain issues will be considered "per se" error, such as bed sores, bladder infections resulting from catheters, and preventable infections such as those stemming from staphylococcal infections.

The rule identifies eight conditions — including three serious types of preventable incidents sometimes called "never events" — that Medicare no longer will pay for. Those conditions are:

• Objects left in a patient during surgery

• Blood incompatibility

• Air embolism

• Falls

• Mediastinitis, which is an infection after heart surgery

• Urinary tract infections from using catheters

• Pressure ulcers, or bed sores

• Vascular infections from using catheters

• The Centers for Medicare and Medicaid Services said it also would work to add three more conditions to the list next year.

$20 Million Dollars Worth of Malpractice.  The Bush administration expects this will save $20 million per year, which to me means there is $20 million per year worth of treatments designed to "fix" malpractice.  You can count this as one of the first times this Administration has recognized the prevalence of medical negligence.

Implications for Attorneys.  The implementation of this policy only seems to have positive implications for victims of malpractice.  The most obvious would be that if Medicare does not pay for these services, then there can not be a lien from recovery.  I would suppose that if one gets a verdict or settlement on a malpractice claim that if Medicare has paid, the attorney for the patient could argue that Medicare should receive a refund from the medical provider rather than a lien against the Plaintiff's recovery.  Right now I don't know the effective date of the policy change.

I will be doing further research to see how the regulations will be implemented.  I'm assuming that Medicare's refusal to pay for "malpractice" will not be admissible to prove negligence in malpractice cases.

A further question is what happens when the victim of malpractice needs medical treatment for the remainder of their lives?  Will the hospital be paying for all the bills?  I'm thinking this will be a difficult issue in some cases.

Check back for updates on this post.

Chris Nichols

www.NicholsTrialLaw.com