Legislative Success: Inadmissibility of “Never Events” in Medical Malpractice Claims

The recent Florida Legislative Session resulted in a series of small, yet significant, triumphs for hospitals and physicians faced with medical malpractice claims, as encapsulated in House Bill 479. The use preclusion on “Never Events” and other reimbursement guidelines that was drafted into HB 479 has been underpublicized compared to the series of new requirements that will be placed on out-of-state medical experts seeking to provide opinion or testimony in Florida medical malpractice claims. Despite the lack of emphasis this piece of legislation received in the media, its passage represents a substantial victory for providers seeking proactive change in the way medical malpractice claims are presented to juries.

Under the current federal reimbursement scheme, the Centers for Medicare and Medicaid Services (“CMS”) has determined that certain adverse events constitute hospital-acquired conditions (“HACs”) for which hospitals will not be paid at the higher Medicare reimbursement level. CMS has determined that these HACs are “reasonably preventable by following evidence-based guidelines.” The National Quality Forum (“NQF”) has developed a separate, but overlapping, list of “Serious Reportable Adverse Events,” which are defined as “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients.” Despite the fact that CMS has not adopted all of the adverse events on NQF’s list, the national media has coined the term “Never Events” for both CMS’s HACs and for NQF’s Serious Reportable Adverse Events.

In addition to these two types of “Never Events,” many private insurers have also added language providing for the limited reimbursement or a complete denial of payment where certain “hospital-acquired” adverse events occur. As insurers, both public and private, look for ways to reduce costs, the national trend is to limit or deny reimbursement for certain pre-defined adverse events. Additionally, federal and state programs are increasingly requiring the reporting of such events and we can presuppose that there will be a trend in the future to reduce the overall reimbursement for hospitals where there are higher numbers of such adverse events.

Prior to the implementation of HB 479, hospitals and physicians faced the possibility of an additional punitive increase in liability if a plaintiff presented evidence that any portion of their alleged injuries fit the definition of a “Never Event.” It was reasonable to anticipate that if a jury were presented with evidence from an insurer that the adverse event that occurred should never happen where proper care is provided, the jury will assume that the adverse event could never happen without fault on the part of the provider. Especially in light of the reimbursement penalties already in place as described above, such a result would be incredibly unfair to providers given that certain “Never Events” may not be preventable in patients with specific morbidities.

In a prospective effort to combat this potential for inequitable results for hospitals and physicians, McCumber Daniels attorneys Andrew McCumber and Starlett Miller proposed the use preclusion legislation that is now incorporated into § 766.102, Florida Statutes, and prepared the draft that has now been incorporated into this proactive legislation. The firm commends the Florida Hospital Association for staying ahead of this issue and working to preempt this problem.

Author: Starlett M. Miller

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