Practice Economics

Hospitals' Observation Status Designation May Trigger Malpractice Claims


I’m convinced that observation status is rapidly becoming a meaningful factor in patients’ decision to file a malpractice lawsuit.

First, let me concede that I don’t know of any hard data to support my claim. I even asked the nation’s largest malpractice insurer about this, and they didn’t have any data on it. I think that is because observation status has only become a really big issue in the last couple of years, and since it typically takes several years for a malpractice suit to conclude, it just hasn’t found its way onto their radar yet.

But I’m pretty sure that will change within the next few years.


As any seasoned practitioner in our field knows, all outpatient and inpatient physician charges for Medicare patients, along with those of other licensed practitioners, are billed through Medicare Part B. After meeting a deductible, patients with traditional fee-for-service Medicare are generally responsible for 20% of all approved Part B charges, with no upper limit. For patients seen by a large number of providers while hospitalized, this 20% can really add up. Some patients have a secondary insurance that pays for this.

Hospital charges for patients on inpatient status are billed through Medicare Part A. Patients have an annual Part A deductible, and only in the case of very long inpatient stays will they have to pay more than that for inpatient care each year.

But hospital charges for patients on observation status are billed through Part B. And because hospital charges add up so quickly, the 20% of this that the patient is responsible for can be a lot of money—thousands of dollars, even for stays of less than 24 hours. Understandably, patients are not at all happy about this.

Let’s say you’re admitted overnight on observation status and your doctor orders your usual Advair inhaler. You use it once. Most hospitals aren’t able to ensure compliance with regulations around dispensing medications for home use like a pharmacy, so they won’t let you take the inhaler home. A few weeks later you’re stunned to learn that the hospital charged $10,000 for all services provided, and you’re responsible for 20% of the allowable amount PLUS the cost of all “self administered” drugs, like inhalers, eye drops, and calcitonin nasal spray. You look over your bill to see that you’re asked to pay $350 for the inhaler you used once and couldn’t even take home with you! Many self-administered medications, including eye drops and calcitonin nasal spray, result in similarly alarming charges to patients.

On top of the unpleasant surprise of a large hospital bill, Medicare won’t pay for skilled nursing facility (SNF) care for patients who are on observation status. That is, observation is not a “qualifying” stay for beneficiaries to access their SNF benefit.

It is easy to see why patients are unhappy about observation status.

Patient anger regarding observation status can turn a satisfied patient into an angry one. We all know that unhappy patients are the ones most likely to pursue malpractice lawsuits. While anger over observation status doesn’t equal medical malpractice, it can change a patient’s opinion of our care, which may in some cases result in a malpractice claim.

The Media Message

News media are making the public aware of the potentially high financial costs they face if placed on observation status. But, too often, they oversimplify the issue, making it seem as though the choice of observation vs. inpatient status is entirely up to the treating doctor.

Saying that this decision is entirely up to the doctor is a lot like saying it is entirely up to you to determine how fast you drive on a freeway. In a sense that is correct, because no one else is in your car to control how fast you go and, in theory, you could choose to go 100 mph or 30 mph. The only problem is that it wouldn’t be long before you’d be in trouble with the law. So you don’t have complete autonomy to choose your speed; you have to comply with the laws. The same is true for doctors choosing observation status. We must comply with regulations in choosing the status or face legal consequences like fines or accusations of fraud.

Most news stories, like this one from NBC news ( in February, are generally accurate but leave out the important fact that hospitals and doctors have little autonomy to choose the status the patient prefers. Instead, media often simply encourage patients on observation status to argue for a change to inpatient status and “be persistent.” More and more often, patients and families are arguing with the treating doctor; in many cases, that is a hospitalist.

Complaints Surge

At the 2014 SHM annual meeting last spring in Las Vegas, I spoke with many hospitalists who said that, increasingly, they are targets of observation-status complaints. One hospitalist group recently had each doctor list his or her top three frustrations with work; difficult and stressful conversations about observation status topped the list.

Patient anger regarding observation status can turn a satisfied patient into an angry one. We all know that unhappy patients are the ones most likely to pursue malpractice lawsuits. While anger over observation status doesn’t equal medical malpractice, it can change a patient’s opinion of our care, which may in some cases result in a malpractice claim.


Medicare is unlikely to do away with observation status, so the best way to prevent complaints is to ensure that all its implications are explained to patients and families, ideally before they’re put into the hospital (e.g., while still in the ED). I think it is best if this message is delivered by someone other than the treating doctor(s): For example, a case manager might handle the discussion. Of course, patients and families are often too overwhelmed in the ED to absorb this information, so the message may need to be repeated later.

Maybe everyone should tell observation patients, “We’re going to observe you” without using any form of the word “admission.” And having these patients stay in distinct observation units probably reduces misunderstandings and complaints compared to the common practice of mixing these patients in “regular” hospital floors housing those on inpatient status.

Unfortunately, I couldn’t find research data to support this idea.

I bet some hospitals have even more elegant and effective ways to reduce misunderstandings and complaints around observation status. I’d love to hear from you if you know of any. E-mail me at [email protected].

Dr. Nelson has been a practicing hospitalist since 1988. He is co-founder and past president of SHM, and principal in Nelson Flores Hospital Medicine Consultants. He is co-director for SHM’s “Best Practices in Managing a Hospital Medicine Program” course. Write to him at [email protected].

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