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The Relevance of 'Never Events' in Medical Malpractice Litigation

By John Ratkowitz and Robert Sanfilippo

The National Quality Forum, a nonprofit organization that aspires to set priorities and goals for improvement in health care in the United States, established the concept of “Never Events” in 2001, which consists of a list of serious complications that should never occur in a safe hospital. Arnold Milstein, Ending Extra Payments for “Never Events” ' Stronger Incentives for Patients Safety, 360 (23) New Eng. J. Med. 2388, 2388-90 (2009).

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.

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