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Guide to “Never Events” for Victims and Their Families

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Guide to “Never Events” for Victims and Their Families

Introduction

 

“First, do no harm.” The statement, commonly attributed to Hippocrates, is one of the most fundamental tenets of health care providers. It serves as a reminder that, while healing is paramount, avoiding harm while treating a patient is a coincident priority.

The elimination of preventable harm has taken on importance with so-called “never events,” serious incidents that negatively impact patients, their loved ones and the practitioners involved with the patient experience. The term is derived from the notion that certain incidents should not occur within a healthcare environment where patients are being treated with an appropriate standard of care. However, mistakes can happen that put the person’s life and well being at risk, and they do happen where negligence or recklessness are present.

While most health care professionals will always maintain the proper level of care during a patient encounter, having some information on never events can help a victim cope with and respond to these incidents. Important topics on the subject include:

  • The definition of a “never event” and history of the concept;
  • Statistics on the frequency of never events and sample cases;
  • Preventing never events, both personally and nationwide;
  • Steps to take when a never event occurs; and,
  • The basics of a never event lawsuit.

Understanding the full impact of never events on patients, healthcare workers and facilities might help prevent them from occurring in the future; at minimum, an appreciation of the causes and effects can at least help reduce their frequency.

I. “Never Events” in a Nutshell

 

The Definition of a Never Event

The Leapfrog Group, a conglomeration of large U.S. companies dedicated to reducing the costs of health insurance and minimizing patient risk, defines “never events” as:

Adverse events that are serious, largely preventable and of concern to both the public and health care providers for the purpose of public accountability.

Never events are a serious concern of patients and their loved ones because the results can be illness, life-changing injury or even death, among other complications. Many times, a never event will give rise to a lawsuit based upon legal theories of medical malpractice because one or more providers did not adhere to the proper standard of care.

Never Events Historically

The concept of never events found its roots during the 1970s when medical malpractice cases were increasingly in the news and court rooms. Medical negligence was uncommon prior to that time, when most patients were of the mind that “doctor knows best.”

The onslaught of cases resulted in health care organizations and providers having difficulty finding and affording proper insurance to balance the risk. Malpractice insurance became exorbitant as the companies and their insureds alike struggled to manage the exposures. The fear, intimidation and embarrassment involved with potential lawsuits caused an atmosphere of secrecy: Therefore, the details of investigations and opportunities to learn were kept under lock and key.

In response to cries for a national approach to health care quality and reporting, the National Quality Forum (NQF) was created in 1999. This non-profit organization is comprised of groups representing consumers, providers, organizations and other enterprises that support the medical industry. The NQF is tasked with implementing a strategy for reporting error rates in diagnoses, procedures and treatments. The group has identified 28 Serious Reportable Events (SREs, colloquially termed “never events”) that should never occur in a health care setting. They fall within six categories:

  • 1. Surgical never events;
  • 2. Product or device SREs;
  • 3. Patient protection failures;
  • 4. Care management errors;
  • 5. Environmental events; and,
  • 6. Criminal incidents.

The NQF has also established a list of 30 Safe Practices that, if properly implemented, would reduce the risk of never events.

Statistics

The National Center for Biotechnology Information (NCBI), under the umbrella of the National Institutes of Health, compiled a report involving never events and their effect on costs to our nation’s health care system in 2013. The researchers examined data related to malpractice settlements and judgments involving over 9,700 surgery cases from 1990 through 2010 and discovered some shocking trends.

  • Malpractice payments for surgical never events was over $1.3 billion;
  • Death was the result in 6.6% of patients;
  • Victims of SREs suffered permanent injury in 32.9% of cases and temporary injuries in 59.2% of the claims;
  • Of physicians named in a claim, over 12% were involved in another never event later in time.

A Johns Hopkins Malpractice Study also revealed some staggering results about surgeons in the U.S.:

  • A foreign object, such as a sponge or implement, is left inside a patient during an operation 39 times per week;
  • The wrong surgery is performed on a patient around 20 times a week; and,
  • A procedure is executed upon the wrong body site on the right patient 20 times per week.

Indications of NQF Never Events

There are certain trends that develop when a medical never event is suspected, which can indicate that some medical malpractice has occurred. While this conduct does not always point to a cover up by a physician or health care facility, it should serve as a warning that follow up may be necessary.

  • The physician fails to document the patient encounter: Medical records are a regular practice among physicians, as they rely on this paperwork in order to bill out to insurers and other payors. In other words, health care providers receive payment for their services based upon the information contained within these documents. If there is a void where the patient encounter occurred, this is a red flag indicating the potential for a never event.
  • The physician confuses or misleads the patient: In a sense, this potential never event is a way for the physician to cover his or her tracks. When questioned about the encounter, a doctor may be vague in medical terminology or in recounting what occurred during the visit. Obscuring what transpired points toward some sort of negligence in providing care.
  • Radiologist interrupted during read: Phone calls are a part of life for busy physicians, but there may be liability for a never event where the interruption results in a botched diagnosis. Errors in MRIs, CT scans and other radiology records can result in improper or unnecessary treatments being provided by treating physicians.
  • Prescription changes for elderly patients: When a person has been taking the same meds for a length of time, making adjustments to the dosage or type can be hard to bring into their routine. This is especially true for elderly patients who aren’t informed of the change in the proper manner. A physician’s failure to mention that medications have been altered might be an indication of malpractice.
  • Hand offs between and among physicians can cause miscommunications: Some cases of never events reveal that there are problems when transmitting the plan of care for a patient to a new provider, such as upon leaving the ER and being moved to a new department within the health care facility. Medication plans have been improperly reported or omitted entirely.
  • Misreading chart on blood type: Hand-writing can be to blame where the wrong blood type is transfused into a patient, which can cause severe injury, require additional surgery and even result in death.

II. Preventing Never Events on a Personal Level

 

The approach for ensuring that you don’t become a victim of a never event requires you to be proactive than reactive in receiving medical care.

Researching Healthcare Providers

It’s important to thoroughly vet your physician if you want to reduce or eliminate the possibility of medical malpractice. There are a few resources you can use to investigate candidates if you’re looking for a new doctor or to check up on your current provider.

  • The American Board of Medical Specialties: The ABMS has established a certification process that stands as proof that a doctor has earned a degree from a qualified medical school, completed the accredited residency program and is otherwise properly licensed by the state where he or she practices medicine. The ABMS also mandates continuing education requirements that physicians must complete to maintain their license in good standing. You can search for physicians by name, location and specialty.
  • Look at history of malpractice and disciplinary actions: While the ABMS can tell you about a doctor’s certification, you need to dig deeper to find other red flags. The Consumer Reports website includes a “Check up on Your Doctor” feature, which grades physicians according to several criteria. You can research the person’s practice quality, qualifications, licensing and patient experience information.
  • The Federation of State Medical Boards: This organization offers a Directory of State Medical & Osteopathic Boards, which you may contact to find out more about your physician. You can check its Physician Data Center to inquire about formal actions and disciplinary matters taken against providers.
  • Talk to friends and family: While it’s still essential to use the ABMS certification and do an in-depth investigation of your doctor, your loved ones can also provide some advice. If they’ve ever experienced the indications of NQF never events, you should certainly find a different care provider.

Researching Healthcare Facilities

Many times, never events in healthcare are not due to the fault of the physician, but rather to conditions at the facility where treatment occurs. Therefore, you can decrease your exposure to risk by scrutinizing health care facilities.

  • The National Institutes of Health, via the Leapfrog Group, offers its MedlinePlus service to consumers looking for more information on health care organizations. The results are compiled from surveys completed by health care facilities that are committed to maintaining transparency between the organization and the consumer-patients they serve. The questions center on how the patients fare as a result of their encounter, the resources utilized in providing care and policies related to promoting patient safety.
  • Consumer Reports has prepared a list of Hospital Ratings, which includes consideration of several criteria:
    • A safety score that measures such categories as avoiding infections and re-admissions, proper communications to patients on medications and discharge plans, proper use of scanning equipment and mortality rates. This score is based upon a 100-point scale, with 100 being the highest level of safety.
    • Patient outcomes that focus on such factors as surgical and blood infections, surgical mortality, medical mortality and adverse surgical events.
    • The patient experience is also measured by survey. Patients are asked to rate the health care facility by such qualities as communications with providers, pain control and response to requests for help. The general environment, including quiet times and cleanliness are also topics.

III. Preventing Never Events on a Large Scale

 

Influence Policy

Starting in 2008, Medicare has been implementing a “no pay” policy for certain incidents with the intention of improving care and eliminating hospital acquired infections and injuries. The Medicare never events approach targets those occurrences that would have been preventable by utilizing the appropriate standard of care.

  • Pros: The upside of the strategy is that health care providers have more of an incentive to ensure the highest level of vigilance in making sure that patients don’t suffer from SREs. A financial motivation is often effective when trying implement policy.
  • Cons: There are drawbacks to the Medicare never events strategy, as the approach is based upon billing. This can be misleading when based on assumptions, especially for those conditions that were present upon admission. For instance, Medicare may look at a bedsore as evidence of a never event, but the truth is obscured when the patient arrived at the hospital with the condition.

Require Video of Patient Encounters

Mandating that health care providers capture video of surgeries and other procedures has a lot of potential as compared to relying on written notes or dictation as medical records. The usually-short notes do not provide enough detail as to where mistakes might have occurred.

  • Pros: Video can be used to improve the quality of care when viewed by peers who can offer advice to another physician. The tapes can also provide a more thorough account of what was done during a procedure for physicians who see the patient in the future. There is also proof that doctors increase the amount of time they spend on a procedure when they know they’re being taped, which results in a higher quality of performance.
  • Cons: The expense of implementing a video camera system can be out of range for many health care facilities. Plus, there are costs related to high resolution video, which is generally necessary to capture more intricate procedures. The final stage of a video system is storage, which incurs its own price tag as well.

Educate Patients

Patients (or their care takers) have a responsibility to understand their care, know the implications of their medications and listen to the recommendations of their health care providers. However, prevention of never events can also be achieved when physicians actually educate their patients on their care rather than just telling them what to do.

  • Pros: When people receive an explanation as to what a diagnosis means and how certain treatments will help, they see themselves more as partners than patients. They accept a sense of accountability, which can help them recognize the indications of an SRE even before it occurs. Patients can also identify signs of never events in health care after a procedure, which ensures they obtain proper care more quickly.
  • Cons: Giving a patient too much information can also backfire if it results in hypochondriac tendencies. Many doctors see the results of over-education with patients who self-diagnose after reading about their symptoms on the Internet. Those without a medical background can make wild accusations without much foundation if they have just a slight bit of information from a trusted source.

Establish Harsher Penalties

Just as in criminal justice theory, imposing more severe penalties to punish providers and facilities for SREs has its advantages and disadvantages. There are some proponents of this approach that would make distinctions among various never events, such as a harsher reproach for more grave incidents and repeat offenses.

  • Pros: Incentives can bring about change when they hit a physician or health care facility in the pocket book. However, the strategy would not just charge fines for SREs; the revocation or suspension of credentials can be a powerful motivator due to the financial impact of not being able to practice medicine.
  • Cons: Despite a maintaining a high standard of care, mistakes can still happen that threaten the livelihood of medical professionals. Plus, there are cases where physicians should be encouraged to take certain risks if they believe the health of the patient would benefit. Therefore, a draconian approach may discourage innovation.

Get Involvement from Medical Experts

This is perhaps one of the most obvious ways to prevent never events from happening on a large scale, but it still deserves mention because of the significant impact it can have. Not only are the perspectives of physicians important, but we must also turn to other providers and nurses for their input. This is true because the many decisions regarding a patient’s care are given in urgent situations, where authority for treatment lies with the person who has the most expertise. This could mean a physician’s assistant, emergency responder or nurse.

  • Pros: Medical experts are in a far better position to determine how to prevent and respond to never events than politicians or others enacting policy. Those on the front line in providing care have a unique viewpoint in terms of identifying and reacting, as compared to hospital administrators more concerned with their bottom line than patient care.
  • Cons: Unfortunately, there can be a social order among the different medical professionals that impacts the influence they have when attempting to influence policy. For instance, the input of nurses might be given less authority than a surgeon’s simply because of status. There is no place in the prevention of never events for this hierarchy, but the possibility does exist for regulations to be influenced by position.

IV. How to Respond to a Never Event

 

If you or a loved one has experienced a suspected never event, it’s important to seek appropriate medical treatment immediately. Getting you on the pathway to health is the most critical task at hand. In an extreme case that resulted in death, you should take the time to properly grieve and take care of the person’s affairs.

However, once you’re able to respond to an SRE and address the matter with the responsible parties, there are a few things you should do to pursue your legal remedies for any wrongdoing.

The Impact a Never Event Can Have On Your Life

The fact is that, the occurrence of a never event means a mistake has been made, and the impact on your life can be grave.

  • Physical Effects: The injuries due to experiencing a never event can range from minor to catastrophic depending on the case. An error in prescribing medication might result in an uncomfortable reaction, while a sponge left inside your body after a procedure is going to be far more painful. Many times, the injuries you sustain will require ongoing care, physical therapy, and even additional surgery. Death is an extreme result, but it can happen in the most severe cases. Physical effects include discomfort, no matter how insignificant, that interferes with your normal routine.
  • Financial Impact: The medical bills related to a never event typically fall into two categories.

1. Those incurred during the original patient encounter, during which the SRE occurred; and,

2. Those that result from the care you receive as a result of the SRE and are charged after the incident.

These expenses may be handled in various ways, depending on the provider and facility. If the existence of a never event is disputed, these bills will likely be sent to you in due course. However, a provider that recognizes the existence of wrongdoing may opt to not bill you. Payment of your medical expenses may also be dependant upon which of the two categories they fall into under #1 and #2 above.

Another area where you may suffer a financial impact due to a never event is your employment. Long-term care, surgery and recovery periods may leave you unable to work. In severe cases, SREs can result in you not returning to your previous level of employment, especially if your job requires physical effort.

  • Emotional Stress: There’s no question that SREs can affect your emotional well being, as they make an impact on your physical health and financial obligations. These life-changing incidents can leave you feeling anxious or depressed, for which you may seek psychological treatment for mental illness. You might also suffer from sleep loss and interference with your personal relationships, both of which can take a toll on your emotional state.

Act Quickly to Protect Your Rights

Under these circumstances, you can see why it’s important to respond properly after a never event occurs. There are a couple of reasons time is of the essence when addressing SREs:

  • The Statute of Limitations: Each state in the U.S. has enacted a law that restricts the amount of time you have to file a lawsuit based upon a never event. The clock begins ticking the day the SRE occurred or was discovered, depending on the circumstances. The statute of limitations may vary by state, but it does create a sense of urgency in pursuing your legal interests. Proper investigation of your case can take many months and you don’t want to lose your right to file a lawsuit for ever because you delayed in acting.
  • The Investigation: It will be necessary to conduct a thorough investigation into your never event if the provider or health care facility disputes your claims. If you wait to act, the integrity of certain evidence may be affected and the recollections of witnesses fade. You don’t want to lose these important details with the passage of time, as they may be necessary proof.

Retain an Attorney that Specializes in Never Events

A never event may give rise to certain legal remedies under the law, for which you may be entitled to recover your losses. However, unless you have an extensive legal background, you might be unable to identify your rights and don’t have the knowledge to properly pursue them. It’s important to bear these issues in mind, as they put you at a disadvantage when it comes to your legal interests.

An attorney is necessary to make sure your rights are protected and you obtain the highest level of compensation possible. This is true when considering the likely scenarios your case may fall into:

  • There are typically a few parties involved with SRE matters: the health care provider or facility, the insurance company that covers the incident and you (or your loved one); you can expect that your primary dealings will be with the insurer at first. There may be attempts to settle your case out of court, and these negotiations can be quite complex as they deal with complicated areas of law and medicine.
  • If settlement negotiations break down, it’s likely you’ll need to file a lawsuit to pursue your legal remedies. This process involves developing a strategy, drafting the proper documents, appearing in court, and arguing your case. Only a qualified attorney with experience in never events cases can properly represent you in connection with these proceedings.

V. A Never Event Lawsuit: Medical Malpractice

 

Recovering for losses due to a never event centers on making a case for medical malpractice, a theory that’s founded on legal negligence.

Establishing The Four Elements of Negligence

The plaintiff must claim and prove four elements in order to establish a cause of action for never events litigation:

1. Duty. A health care provider or facility owes a certain responsibility to patients; this is the duty incumbent upon healthcare practitioners as they’re treating a patient. The measurement is based upon whether a provider used the generally accepted standard of care that similarly qualified professionals would have provided under the same circumstances. The duty is typically easy to argue, as a patient only has to prove that he or she was treated by the provider.

2. Breach. Once the duty is established, the question becomes whether the potential defendant breached the duty by providing a course of care that does not rise to the generally accepted levels. This element of the cause of action for never events liability can be more difficult to establish when the provider disputes the circumstances. For this reason, medical expert testimony may be necessary to show that the defendant practitioner deviated from his or her duty of care.

3. Causation. As the term suggests, you must prove that your doctor’s breach of duty was the cause of your injuries. Again, this element can be difficult to establish without the testimony of a medical expert: The connection between your injuries and the treatment, omission or other misconduct must be proven.

4. Damages. Finally, a plaintiff in a case involving SREs must claim that he or she has suffered losses due to the physician’s breach of the duty of care.

Damages

The damages in a never events case relate directly to the physical, financial and emotional impacts mentioned above. Each of these impacts results in legal damages: That they have caused you losses, for which you may be entitled to compensation. Specifically:

  • Pain and Suffering: Your injuries have likely caused a great amount of physical pain, achiness and discomfort. You, through your attorney, would claim these damages as part of your case for medical malpractice. Loss of sleep, chronic soreness and muscle tenderness may also be included under pain and suffering.
  • Medical Care Costs: Any treatment you’re forced to undergo as a result of your healthcare providers negligence may be billed to you. These expenses could include surgery, ongoing care, physical therapy or any other treatments necessary to bring you back to health.
  • Loss of Income: Many never events are so severe that a patient is unable to return to work right away, resulting in lost wages. If you’re able to work at some point in the future, but you fail to return to the level that you engaged in prior to the incident, you may be entitled to damages for future income as well.
  • Mental Distress: The stress of suffering a never event can be just as traumatic as the physical injuries themselves. There may be depression, anxiety or other turmoil that may lead you to seek treatment. These costs are also included in the concept of damages.

Attorney’s Fees

While not included in the cause of action under the never event theory of liability, it’s important that you understand how you will be billed for your case. First, most medical malpractice matters are structured as a contingency fee arrangement: You don’t pay your attorney unless you win your case. A victory may be successful in obtaining a fair settlement agreement with the responsible party’s insurance company or a verdict in your favor in court. In cases that go through court-ordered mediation or arbitration, any award in your favor is also considered a win.

When you do win your case, your attorney will deduct an agreed-upon amount from your compensation amount; typically this ranges from 25-40%. Also, keep in mind that costs related to the preparation of your case will be subtracted as well. These expenses are a necessary part of any never event case, such as the costs involved with obtaining your medical records, taking depositions and filing a case in court. A never event case will also require extensive participation from medical staff and professionals, including depositions and in-court testimony. These experts usually charge on an hourly basis for their services.

VI. Helping Others Avoid Similar Circumstances

 

After you’ve suffered tremendously due to a never event, you might want to warn anyone and everyone to stay away from the doctor and/or hospital who injured you. However, you might be limited to what you can say and the details you can reveal in the aftermath of a never events suit founded on medical malpractice. The extent to which you can go public and warn others depends on the outcome of your case.

What You Are Allowed To Reveal Depends On Your Case

Result: Settlement with Practitioner’s Malpractice Insurance Company

Because settlement negotiations and terms are typically resolved out of court, the terms of the agreement will govern what you can say in public about the healthcare provider or facility. Often, these agreements include provisions that require you to keep all the details of your case confidential. You may be subject to consequences and monetary penalties for breach, which will be defined in the settlement agreement itself.

Result: Court Trial with Jury or Judge Verdict

If you do file a lawsuit in court, the documents you file that describe all the details of the case become part of the public record and accessible by anyone; for this reason, it’s likely that you can go public to warn others so long as you’re truthful about the facts related to your case. Bear in mind, however, that courts will issue an order to keep the proceedings under seal if the case warrants it. This means you cannot reveal the details of your matter as well.

Result: Award through Arbitration or Mediation

The proceedings are similar to a court case in the sense of presenting evidence and arguments, but there are specific rules for mediation and arbitration settings. Whether you can reveal the details of your never events case depends upon the jurisdiction and rules that govern them, so consult with your attorney if you want to go forward.

Going Public

In any situation where you’re tempted to go public, reveal the details of your case and warn others about a particular physician, it’s wise to consult with your attorney first. He or she will know whether you can talk about your matter and to whom. Lawyers will also advise you on how long you must keep matters confidential, as some settlement agreements will only require your silence for a certain amount of time.

Another point to keep in mind is that “going public” means communicating the facts of your case via a wide range of media. This means staying quiet on social media and the Internet, even if your posts are supposedly anonymous. There are many ways that technology can be used to find the source.

Conclusion

 

Now that you have a better understanding on the concept of never events and how to identify them, you’re in a better position to respond when you or a loved one suffers from resulting injuries.

While there are certain actions you can take to reduce the potential of an SRE affecting you, unforeseeable mistakes can have unintended consequences.

It’s essential to be prepared to act quickly and hire an attorney to protect your interests. A never event can have devastating impacts upon many aspects your life and it’s important that you partner with a legal professional to ensure you obtain the compensation you deserve to make you whole.

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