Medicolegal Issues

No Fee for Errors


State governments, private payors, Medicare, and hospitals have reached the same conclusion: Hospitals should not charge for preventable medical errors.

One of the latest entities to join this trend is Washington state. Early this year, healthcare associations there passed a resolution saying Washington healthcare providers no longer will charge for preventable hospital errors. The resolution applies to 28 “never events” published by the National Quality Forum (NQF). These are medical errors that clearly are identifiable, preventable, serious in their consequences for patients, and indicative of a real problem in the safety and credibility of a healthcare facility. (For a complete list of events, visit NQF’s Web site (

Policy Points


A hospital coalition is suing CMS to stop the agency from carrying out a rule that would bind states’ efforts to leverage higher Medicaid payments for safety net hospitals. The rule would curb intergovernmental transfers and tie the upper payment limit to costs. The coalition, led by the National Association of Public Hospitals and Health Systems and including the American Hospital Association, filed suit in federal court in March. The group argued Congress had passed a moratorium on the rule and the substance of the rule exceeds the agency’s statutory authority.

PCPs Go International

A new report by the Government Accountability Office (GAO) reveals the makeup of primary care physicians is changing. Fewer Americans are pursuing careers in primary care, but more international physicians are choosing that field. As of 2006, there were 22,146 American doctors in U.S. primary care residencies—down from 23,801 in 1995, or 7.5%. The number of international medical graduates training in primary care, however, grew from 13,025 to 15,565, or 19.5%, in the same period. For a copy of the GAO report, visit


The Hospital Quality Alliance (comprising the American Hospital Association, the American Association of Medical Colleges, and the Federation of American Hospitals) has published the “2008 Quality Roadmap for Hospitals,” a concise guide to new quality data collection and public reporting requirements. Download it at

Hospital Spending Continues to Rise

In a 2007 report, the CMS predicted hospital spending will double in the next 10 years, reaching more than $1.3 trillion by 2017 and making up approximately 30% of all healthcare spending and representing the largest portion, by far, of any provider group.—JJ

Hospitals in Massachusetts, Minnesota, Pennsylvania, and Vermont have adopted similar policies. Private insurers Aetna, Wellpoint, and Blue Cross Blue Shield each are taking steps toward refusing payment for treatment resulting from serious medical errors in hospitals.

Amid these decisions, the American Hospital Association (AHA) released a quality advisory Feb. 12, recommending hospitals implement a no-charge policy for serious adverse errors.

“There’s certainly been a lot of conversation about aligning payment around outcomes,” says Nancy E. Foster, the AHA’s vice president for quality and patient safety policy. “Most of those conversations have focused on reward for doing the right thing, but there were certainly parts of those conversations based on the notion of who’s responsible and who pays when something that was preventable did happen.”

Even the federal government has gotten involved. Beginning in October, the Centers for Medicare and Medicaid Services (CMS) plans to no longer reimburse for specific preventable conditions.

CMS “Stop Payments”

If Congress approves Medicare’s plan, the CMS will not pay any extra-care costs for eight conditions unless they were present upon admission—and it prohibits hospitals from charging patients for such conditions. The conditions include three “never events”:

  • Objects left in the body during surgery (“never event”);
  • Air embolism (“never event”);
  • Blood incompatibility (“never event”);
  • Falls;
  • Catheter-associated urinary tract infections;
  • Pressure ulcers (decubitus ulcers);
  • Vascular catheter-associated infection; and
  • Surgical site infection after coronary artery bypass graft surgery (mediastinitis).

Next year, the CMS plans to add more conditions to the no-pay list. The most likely additions are ventilator-associated pneumonia, staphylococcus aureus septicemia, deep-vein thrombosis (DVT), and pulmonary embolism.

The CMS rule obviously directly affects hospital income, which will affect hospital processes and staff.

“As hospitalists, this affects us,” says Winthrop F. Whitcomb, MD, director of clinical performance improvement at Mercy Medical Center in Springfield, Mass., director of hospital medicine at Catholic Health East, and co-founder of SHM. “It’s another thing showcasing the value of hospitalists because we tend to document well. When a patient comes in with DVT or a pressure ulcer, we tend to document that, and that will help our hospitals.”

Other physicians may balk at hospital requests to amend or add to their notes to ensure payment, but, says Dr. Whitcomb: “Hospitalists understand the requirement for documentation. If you’re not a hospitalist, you may not be happy to be asked to change your documentation so that the hospital can get paid more, but we understand how important this is.”

Hospitals likely will continue to closely oversee physician documentation on Medicare patients.

“At our hospital, we [already] work with coders,” Dr. Whitcomb says. “I’ve heard of this more and more. They round with us now on every Medicare patient and review the charts. They actually write a formal note that prompts us to document accurately—they may ask us to amend that something was present on admission.” Dr. Whitcomb’s hospital has a paper-based system for this information; an electronic system will include this type of prompt. “Electronic prompts can be customized, but they can also be ignored; prompt fatigue is a big issue,” Dr. Whitcomb warns.

Another potential effect on hospitalists will be involvement in hospital efforts to prevent the eight conditions.

“The CMS change is definitely going to up the ante for quality improvement and patient safety work, no matter who undertakes it,” Dr. Whitcomb says. “It should expand opportunities for hospitalists to work in [quality improvement]. Hospitalists may end up leading teams to specifically address certain never events. The good news is, it gets right at the bottom line of the hospital, so nonclinicians like administrators in the financial office will immediately understand the importance of work like this.”

Leaving a sponge inside a patient is clearly a preventable medical error—but what about pressure ulcers? Or DVT?

In his “Wachter’s World” blog post of Feb. 11 (, Robert Wachter, MD, professor and associate chairman of the Department of Medicine at the University of California, San Francisco, addressed the CMS rule.

“For some of the events on the Medicare list, particularly the infections (such as catheter-related bloodstream infections), there is good evidence that the vast majority of events can be prevented,” Dr. Wachter wrote. “For others, such as pressure ulcers and falls, although some commonsensical practices have been widely promoted (particularly through IHI’s 5 Million Lives campaign), the evidence linking adherence to ‘prevention practices’ and reductions in adverse events is tenuous. These adverse events should stay off the list until the evidence is stronger.”

In spite of his misgivings, Dr. Wachter is a strong proponent of the trend toward nonpayment for preventable errors. “We’ve already seen hospitals putting far more resources into trying to prevent line infections, falls, and [pressure ulcers] than they were before,” he says. “And remember that the dollars at stake are relatively small. The extra payments for “Complicating Conditions” (CC) are not enormous, and many patients who have one CC have more than one; in which case, the hospital will still receive the extra payment even if the adverse event-related payment is denied. So, in essence the policy is creating an unusual amount of patient safety momentum for a relatively small displacement of dollars – a pretty clever trick.”

For more information on the CMS rule, read “Medicare’s decision to withhold payment for hospital errors: the devil is in the details,” by Dr. Wachter, Nancy Foster, and Adams Dudley, MD, in the February 2008 Joint Commission Journal of Quality and Patient Safety. TH

Jane Jerrard is a medical writer based in Chicago.

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