On August 31, 2009, New Jersey Gov. Jon Corzine signed into law an act requiring hospitals to publicly report 14 serious medical errors. One of the first laws of its kind in the United States, this legislation also bars hospitals in New Jersey from seeking reimbursement for costs associated with the following “never events” for which Medicare does not allow payment: surgery on the wrong side, body part or person; the wrong surgery; air embolism; transfusion reaction; and a foreign object left inside a patient during a procedure. Commencing in November 2009, New Jersey’s annual hospital performance report—published by the state Department of Health and Senior Services—will include data on the number and rate of the following serious indicators of patient safety in each of the hospitals in the state:

1. Foreign body left during procedure;
2. Iatrogenic pneumothorax (collapsed lung caused by a medical provider);
3. Postoperative hip fracture;
4. Postoperative hemorrhage or hematoma;
5. Postoperative deep vein thrombosis or pulmonary embolism (leg or lung clot);
6. Postoperative sepsis (infection);
7. Postoperative wound dehiscence (opening up of the incision);
8. Accidental puncture or laceration;
9. Transfusion reaction;
10. Birth trauma;
11. Obstetric trauma-vaginal delivery with instrument;
12. Obstetric trauma-vaginal delivery without instrument;
13. Air embolism; and
14. Surgery on the wrong side, wrong body part or wrong person, or wrong surgery performed on a patient.

Currently, the New Jersey Department of Health and Senior Services publishes a hospital performance report each year on hospital-specific treatment of heart attacks, pneumonia and heart failure, and prevention of surgical infections. The state health department also issues a report on indicators of quality of inpatient care used to measure the performance of the state’s hospitals in treating common medical conditions. According to New Jersey Commissioner of Health and Senior Services Heather Howard, “We know that public reporting of hospital performance improves quality and promotes excellence in patient safety—as we have seen with dramatic decreases in cardiac surgery deaths.” Publicizing more patient-safety data may assist patients and their families to make informed decisions about their care and the hospitals they choose.

An interesting aspect of the new law is likely to be the determination of whether a cost or expense is associated with any of the “never events” for which payment will be denied by third parties. This factor is anticipated to generate further debate, and many other states are likely to undertake similar efforts to publicize and restrict reimbursement associated with medical errors in hospitals.

On a Federal level, payment implications began on October 1, 2008, for the conditions identified in both the IPPS FY (fiscal year) 2008 and 2009 final rule. For discharges occurring after that date, there is no reimbursement for charges associated with the hospital-acquired conditions. Balance billing is prohibited, that is, hospitals may not bill patients for the unreimbursed charges.

Plaintiff attorneys are increasingly focusing on these “never events” as they take the position that they constitute medical or nursing malpractice. It is an easy argument to make: the government says these things should never happen, therefore, if they did, someone did something wrong. Proving liability, proximate cause, and damages continue to be essential to winning a suit. The “never events” may provide an easy roadmap to do so.

Contact Med League if you need an expert witness to review your medical malpractice case. We’d love to help.