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Medicare's 'Never Events' Should Never Be Mentioned in Court

By Kim M. Ruder, Andrew W. Countryman and Alexandra Saber

In 2002, Medicare started using the concept of the “never event” ' events that occur in a medical facility that are considered preventable and of concern to the public. As the idea evolved and expanded, Medicare decided that it would not pay for care and treatment related to never events. The concept has since found its way into the Affordable Care Act and related legislation.

Now, medical malpractice practitioners are questioning whether the presence or absence of never events, and their related payment issues, is admissible into evidence at trial. What is the current state of the law, and what issues can we anticipate will come up in the future?

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