Current trends forecast double jeopardy for physicians and hospitals

During the past decade, both the press and the government have increased scrutiny of imperfections in the healthcare system. In response, hospitals and physicians have implemented new systems and updated standards to reduce adverse events and/or medical errors. Given the complexity of modern healthcare systems and technology, complete elimination of adverse medical events may be impossible, at least for the foreseeable future.

Important questions must still be answered. Which adverse events are preventable, and which are not? Is everything humanly possible being done to reduce the incidence of the identified avoidable conditions? The answers will influence future issues of medical liability and may also significantly affect reimbursement for healthcare services.

Defining adverse events
The scientific literature, lay press, and Web have produced a consensus basic definition of an “adverse medical event or error” as one that causes an injury to a patient as the result of a medical intervention rather than the underlying medical condition. It represents an unintentional harm to a patient arising from any aspect of healthcare management.

Most adverse events are multifactorial, resulting from an overlap of system and human errors. Some adverse events may be new or unanticipated, due to changing technologies. Systems failures—such as poor management decisions, dysfunctional corporate cultures, poor communications, inadequate resources, poor staffing, poor documentation, or a lack of safeguards and check points—generally facilitate human errors. Human errors may be knowledge-based, skill-based, fatigue-based, or may result from a failure to follow rules, technical mistakes, and/or an inability to cope with the complexities or demands of the healthcare system.

Preventable or avoidable adverse events are a direct result of failure(s) to follow recognized, evidence-based best practices or guidelines at the individual and/or system level. These accepted standards of care are the expected performance for the average, competent practitioner or healthcare system managing the specific medical condition. Physicians and healthcare systems, as patient advocates, are held responsible for the continuous monitoring, implementation, enforcement, and upgrading of the applicable standards. Disregard for, or ignorance of, these standards is no longer excusable.

Preventable events
Examples of self-evident, or “unforgiveable,” preventable adverse medical events include the following:

• wrong surgery (wrong site, wrong patient, wrong procedure)
• retained foreign body left at surgery
• blood or transplant organ incompatibility
• transmission of an infectious agent to a patient
• administering incorrect medication or dosage
• in-hospital trauma (falls, burns)
• deep venous thrombosis or pulmonary embolus without appropriate prophylaxis
• surgical site infection without indicated antibiotic prophylaxis
• pressure ulcers
• catheter-acquired infections

Potentially avoidable adverse medical events may be caused by misdiagnosis, failure to diagnose, delay in diagnosis and treatment, failure to follow up, or poor performance in the operating room. These latter examples usually require unbiased expert opinion on a case-by-case basis to specifically determine if the standard of care was or was not met. All of these may ultimately lead to medical liability.

Payments in question
In the near future (Oct. 1, 2008), the government (Medicare) will be considering and initiating financial penalties for defined avoidable adverse events in the hospital setting. As mandated by section 5001(c) of the Deficit Reduction Act of 2005, the Centers for Medicare and Medicaid Services will begin to identify high-cost/high-volume in-hospital acquired conditions that result in upcoding of patient admissions to a higher reimbursement diagnosis-related group (DRG) and presumably could have been (reasonably) prevented through application of recognized, evidence-based treatment or best practices.

Among the identified admissions that will not be reimbursed at the higher DRG payment level are the following: object left at surgery, blood incompatibility, catheter-acquired urinary tract infection, pressure ulcers, and in-hospital trauma. Other specific avoidable adverse events may not be reimbursed at a higher level DRG, or future inpatient care related to these events may not be reimbursed. These may include the following: Staphylococcus aureus septicemia, deep venous thrombosis and pulmonary embolus, methicillin-resistant S aureus infection, Clostridium difficile infection, and wrong surgery.

In other words, Medicare may no longer pay for additional hospital care associated with an avoidable adverse event. Whether or not Medicare will pay a physician’s professional fee associated with management of these preventable adverse events will undoubtedly be reviewed at some point. As Medicare sets and promotes these guidelines, other payors will most likely follow.

Impact on physicians
In any case with specific, identifiable, and preventable in-hospital adverse events or diagnoses, the healthcare system—and perhaps even the responsible physician(s)—will be subjected not only to financial penalties for the additional “avoidable” health care rendered to solve the problem, but also to a more transparent implication of substandard care, which may then result in increased medical liability. Patients may receive payor reports indicating that their in-hospital adverse event is categorized as an avoidable complication/condition and therefore not covered. This may have the unfortunate outcome of promoting litigation.

This threat of double jeopardy for hospitals and physicians will most certainly produce tremors throughout the healthcare system over the next several years, especially if financial penalties are assessed and lawsuits occur as a result of an unavoidable adverse event. What will happen if applicable best practices are identified and followed to the letter, but a problem or complication occurs anyway?

For the benefit of the patient population, hospitals and physicians must continue to actively participate in defining, identifying, and preventing avoidable adverse medical events. By careful documentation and vigilance in implementing accepted best practice guidelines, physicians and hospitals may be able to manage the coming double jeopardy of financial penalties and increased risk of lawsuits.

David E. Attarian, MD, has served on the Medical Liability Committee. He can be reached at attar001@mc.duke.edu

References

1. Edmonds M: Adverse events, iatrogenic injury, and errors in medicine.
2. Adverse medical events/errors @ http://en.wikipedia.org