Medicare’s decision to withhold payment to hospitals when they commit certain acts of medical malpractice raises interesting legal issues. That decision, which I briefly mentioned in Round-Up # 24, has Medicare refusing to pay hospitals to fix preventable errors they cause. With this comes the hope of better care as malpractice continues to increase in some hospitals. This includes not only such res ipsa loquitor subjects as retained surgical equipment and wrong site surgery, but also severe bed sores and certain items that could be subject to debate.

According to the Medicare press release, the policy will apply for “never events” — errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility. Since the Institute of Medicine found in 1999 that up to 98,000 people die from medical errors each year, this is clearly an extraordinary problem.

For instance, from the list of “Never Events” is this:

Intraoperative or immediately post-operative death in a normal health patient (defined as a Class 1 patient for purposes of the American Society of Anesthesiologists patient safety initiative.

Now if that case came into my office it would be vigorously defended by the hospital. (Never mind if the defense has merit.) But it also raises an issue: What will be the forum to defend against Medicare’s decision?

Here is another from the press release:

Patient death or serious disability associated with a medication error (e.g., error involving the wrong drug, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation, or wrong route of administration

While some medication errors are clear, they are nonetheless staunchly defended. There is no shortage of doctor-experts to come to the aid of their fellow physicians when accused of malpractice. And many dosage questions may not be so clear cut if the “wrong” dosage that was given was the same one that was prescribed. The defense to the “wrong” drug being given is that the doctor did it on purpose, thus making it a judgment call. (Medicare will need to clarify what it means by “wrong.”)

All this raises a bunch of questions:

How will Medicare implement the policy? If they sweep too broadly into absolutism, they will need a quasi-judicial forum to resolve the issues.

What will be the effect of a Medicare decision not to provide payment have on a court in a malpractice case?

What will happen to the patient when the hospital isn’t being paid? Will the patient suddenly become such a low priority for treatment that they get worse? Or die?

This story came out as I was returning from vacation, and others have already spoken on the subject. For more opinions:

• Big News on Medicare (Day on Torts)
• Medicare Won’t Pay for Certain Preventable Procedures (Kentucky Law Review)
• Preventing medical errors: an official incentive (Health Counter-Spin, via Paul Levy)
• More on the New Medicare Payment Rules (Health Care for All)
• Medical Errors and Medicare (The Physician Exectutive)
• Medicare Will Not Pary for Hospital Errors (medinnovationblog)
• Medicare Wises Up (Socialized Medicine)