The Relevance of Never Events in Medical Malpractice Litigation

Excerpted from "Never Events in Medical Malpractice Litigation," September 2010, Vol. 27, No.126. Medical Malpractice Law & Strategy. By John Ratkowitz and Robert Sanfilipo

The National Quality Forum is a nonprofit organization which aspires to set priorities and goals for improvement in healthcare in the United States. To pursue its mission it established the concept of "Never Events," a list of serious complications that should never occur in a safe hospital. Arnold Milstein, Ending Extra Payments for “Never Events” – Stronger Incentives for Patients Safety, 360 (23) New Eng. J. Med. 2388, 2388-90 (2009).

 On February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, Section 501(c) of Pub. L. 109-171, instructing the Department of Health and Human Services (the Department) to create its own list of Never Events, so that Medicare payments could be decreased when preventable complications occur in hospitals. On October 1, 2008, the Centers for Medicaid and Medicare Services (CMS) identified eight categories of complications for which it would no longer reimburse hospitals if they developed during a hospital admission: foreign objects left in the body after surgery, air emboli, infusion of incompatible blood, falls and traumas, catheter associated urinary tract infections, mediastinitis after coronary-artery bypass grafting, certain infusion associated infections, and pressure ulcers. Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009). This list was later expanded to include poor glycemic control, deep-vein thrombosis or pulmonary embolism associated with knee or hip replacement surgery, and certain orthopedic and bariatric surgical-site infections. Milstein, supra, at 2388. In January 2009, CMS went further and indicated that it would cease payments to hospitals and physicians when surgery was performed on the wrong patient, when the wrong surgical procedure was performed, or when surgery was performed on the wrong side or wrong body part. Id. at 2388. These actions of federal regulators were said to be an effort to "align financial incentives with the quality of care, thereby promoting both quality and efficiency." Inoye, et al., supra, at 2391.

Major private insurers have decided to follow the lead of the federal government by adopting similar reimbursement denials when patients have been harmed in hospitals through categories of preventable medical errors. Among these insurers are Aetna Inc., Cigna HealthCare, Anthem Blue Cross Blue Shield in New Hampshire, Blue Cross Blue Shield of Massachusetts and WellPoint. Rachel Morgan, R.N., National Conference of State Legislatures, Medicare Nonpayment For Medical Errors, (2008), http://www.ncsl.org/Portals/1/documents/health/MCHAC.pdf. Additionally, in July 2008, CMS contacted all State Medicaid Directors and urged them to adopt policies echoing its denial of payments for Never Events in order to avoid the potential negative fiscal impact that non-payment of Never Events by Medicare might have on states, given the problem of dual eligibility under these plans. Id. Clearly, refusing payment for avoidable medical expenses is a public policy trending towards expansion.

Commentators have questioned the wisdom of Medicare's policy decision to refuse to pay for Never Events. See Inouye, et al., supra; See also, See also Peter J. Pronovost, et al., The Wisdom and Justice of Not Paying for “Preventable Complications,” 299(18) J. Am. Med. Ass’n. 2197, 2197-99. Even critics of the policy, however, have characterized Medicare's decision not to reimburse for costs related to leaving objects in the body after surgery as “wise and just." Id. at 2199. When discussing the propriety of including retained foreign objects as one of the original eight categories of Never Events in its non-reimbursement policy, the Department pointed out that in the field of health care, "there are widely accepted and clear guidelines for the prevention of [these] events." 72 Fed. Reg. 426,206 (Aug. 22, 2007). Consequently, according to the Department, this kind of mistake "should not occur." Id.

In 2006, there were 764 instances in which Medicare was billed for care related to retained objects following surgery. Id. Although there is not a comprehensive database that sets forth information about every medical malpractice case filed involving allegations of a retained foreign object, Westlaw does contain a national database of verdicts, judgment and settlements compiled from regional and national jury verdict reporters. However, articles submitted to these reporters are strictly on a voluntary basis. Further, medical malpractice defendants almost always require confidentiality as part of any settlement agreement. Thus, Westlaw's database is no doubt a very small sample of cases filed and litigated. At the same time, it is also one of the only tools available (to plaintiffs' lawyers) to examine how categories of certain types of claims are handled from inception to resolution.

A search of medical malpractice cases involving the retention of surgical sponges in Westlaw’s national jury verdict data base reveals that there have been twelve medical malpractice cases involving retained sponges throughout 2008 and 2009. See An v. Shaw, No. 06 L 11100, 2009 WL 5091924 (Ill. Cir. Ct. Oct. 29, 2009); Anonymous Female Patient v. Anonymous Physician, Anonymous Nurse and Anonymous Clinic, 2009 WL 6366089 (Va. Cir. Ct. Oct. 5, 2009); Sneeze v. State of Louisiana, No. 154,568, 2009 WL 6528661 (La. Dist. Ct. Jul. 27, 2009); Edmondson v. Oakwood Healthcare, No. 07-721460-NH, 2009 WL 3699101 (Mich. Cir. Ct. Jun. 4, 2009); Anonymous 31 Year Old Female v. Anonymous OB/GYN And Anonymous Hospital; 2009 WL 6366051 (Ohio Com. Pl. Jun. 1, 2009); Khaulipour v. St. Ann's Hospital, Kington, and Jiricko, No. 07-CV-001264, 2009 WL 3748727 (Ohio Com.Pl. May 18, 2009); Davis v. Jacobs, No. 06-CV-3409, 2009 WL 1740332 (N.C. Super. Ct. Jan. 16, 2009); Haden v. Kramer, Patrick County Family Practice, P.C. and R. J. Reynolds Patrick County Memorial Hospital, Inc., No. CL07149, 2008 WL 6400289 (Va. Cir. Ct. Oct. 16, 2008); De La Cruz vs. Purdom, No. VC048742, 2008 WL 7165022 (Cal. Super. Ct. Jun. 16, 2008), Young v. Levitt, No. 277895V, 2008 WL 4614405 (Md. Cir. Ct. Jun. 16, 2008); Hanner v. Mark Jones, No. 02-VS-041911, 2008 WL 4614375 (Ga. State Ct. May 19, 2008); Green vs. Sheila Miller, No. CV-2004-1038, 2008 WL 4847169 (Ala. Cir. Ct. Feb. 27, 2008) and Lynch v. St. Vincent Hosps. and Health Servs., No. 49C01-0503-CT-10724, 2008 WL 4276346 (Ind. Cir. Ct. Feb. 28, 2008). In two of the cases, the plaintiffs did not seek compensation from the hospital or medical facility, but rather pursued causes of action exclusively against the treating physicians. In four of the other ten cases, the medical facilities settled without the necessity of a lawsuit. Of the six remaining cases, two of them were settled after suit was filed but prior to trial. The final four cases resulted in two verdicts against hospitals as well as two verdicts in which the hospitals prevailed. Thus, from the sample of the twelve cases appearing in Westlaw's national jury verdict data base in 2008 and 2009, despite the fact that Medicare and private insurance companies have concluded that retained sponges are entirely preventable events which should not occur and should not be paid for, these cases are still being litigated and defended by hospitals in a negligence setting.

In New Jersey, hospital protocols are admissible and can constitute evidence of the prevailing standard of care applicable to medical providers. Rosenberg v. Tovorath, 352 N.J. Super. 385, 406 (App. Div. 2002). Additionally, practice guidelines published by professional medical organizations have also been deemed evidence of what accepted standards of medical care are. Perna v. Pirozzi, 92 N.J. 446, 463-464 (1983). Similarly, if a statute sets forth the appropriate standard of care that should be followed by a medical provider, that statute is admissible as standard of care evidence. DiGiovanni v. Pessel, 104 N.J. Super. 550, 562-563 (App. Div. 1969). Pronouncements from administrative agencies pertaining to issues of medical care have also been deemed admissible to establish governing standards of medical care. Swank v. Halivopoulos, 108 N.J. Super. 120, 126-127 (App. Div. 1969).

It will be interesting to see how the decision by Medicare and the insurance industry, to declare certain categories of events non-compensable because they should not occur in safe hospitals will impact future medical malpractice litigations. Although commentators have suggested that it is "wise and just" to categorize retained foreign objects following surgery as Never Events, these cases are still being defended and litigated. Given the evidentiary nature of professional practice guidelines and administrative regulations, it is reasonable to expect that public policy decisions regarding the compensability of Never Events and the standard of care in medical malpractice litigations will eventually converge.

$3.9 Million Settlement at Trial on Behalf of Two Ironworkers Injured at a Construction Site.

On October 11, 2006, two union ironworkers were severely injured while working at the Broad Street Station Restoration Project in Newark, New Jersey. The project was owned by New Jersey Transit, which had hired a general contractor, Conti Enterprises, Inc. of South Plainfield, New Jersey. Conti had full responsibility for managing the project, both by contract and safety regulations.

The ironworkers were working for a subcontractor on the project, Railroad Construction Co., Inc. of Paterson, New Jersey. On the date in question, they were operating a scissors manlift on a precast concrete platform, which would eventually be used by train passengers when the station was fully operational. At about 2:30 am, on the late shift, they were "bolting up" a canopy at the station, which would be used by train passengers for protection from the elements.

Suddenly, as they were traveling on the motorized scissors lift across the platform, one of the precast planks flipped onto the railroad tracks, catapulting the lift and both workers to the tracks below, causing traumatic bodily injuries. As it developed, the precast platform had not been properly secured by the general contractor, Conti, who had supervisory and contractual responsibility for doing so, and responsibility for alerting its subcontractors of any such dangers.

One ironworker sustained a lower back injury requiring surgical fusion with pedicle screw instrumentation, which required a bone graft at L5-S1. He also fractured his dominant right hand, which required two surgeries and pinning due to a malunion. He also had an open fracture of his left knee, and lost approximately one-third of his left patella, as a result of an open reduction and extensor mechanism repair, with associated scarring. A vocational/economic expert that his past and future net wage loss would amount to between $1.5 and $1.9 million.

The second ironworker sustained ten fractured ribs with painful chest wall syndrome, a concussion, traumatic structural damage in the right inner ear which required two surgeries and resulted in vestibular dysfunction with dizziness and loss of balance, and a profound hearing loss in the same ear, which required a hearing aid. Vocational testimony was presented that this disability forced him to give up a 22 year career as an ironworker and take other jobs in non-union positions that did not pay as well. A vocational expert asserted that he would lose between $1.35 and $1.6 million in past and future wages, by virtue of the physical limitations that prevented him from continuing as union steel worker.

John Ratkowitz and Amos Gern tried the case between November 3 and November 19, 2009. The first ironworker settled his case after one week of trial, on November 13, for $2.9 million. The claims of the second ironworker went to verdict on November 19, before a jury which returned a gross award of $494,138, reduced by 34% for comparative negligence. However, Starr Gern was able to negotiate a high-low settlement of $1,000,000 to $2,000,000 prior to the verdict. As a result, the second ironworker will receive a settlement of $1,000,000 in spite of the jury verdict, and all potential appeals were waived.

Settlement at trial of over $1.4 Million in Orthopedic Malpractice Case on behalf of Livingston, New Jersey resident following Jury Selection.

The plaintiff injured his left elbow when he fell after his scooter struck a hole in a residential street. The following day, he came under the care of the defendant, a pediatric orthopedic surgeon, who performed surgery. Following the surgery, the plaintiff was casted. Approximately six weeks later, when the cast was removed, the plaintiff had little range of motion in the left elbow joint. Within weeks, the joint completely froze. After visiting several orthopedic surgeons in New York City for second opinions, the plaintiff was advised that he required major reconstructive surgery because his left elbow fractures healed in a place higher than their original location.

Suit was filed against the defendant physician and two entities who had responsibilities related to maintaining the street where the accident occurred. The case was litigate for three years and it involved complex issues of causation and apportionment of responsibility.

The plaintiff's medical expert opined that the elbow fractures healed in the wrong position because they were pinned in the wrong place by the defendant during the surgery. The expert further opined that if the defendant had performed the surgery appropriately, the plaintiff would have been left with a functioning pain-free left elbow, with minimal loss of motion. The defendants argued that the fractures were pinned correctly, but drifted following the removal of the surgical pins six weeks later.

Despite undergoing multiple surgeries to correct the malaligned joint, the plaintiff is left with a 30% functioning left elbow.

Partners John Ratkowitz (Click Here for Bio) and Amos Gern settled the case following jury selection prior to opening arguments.

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Surgeon Settles Negligent Cosmetic Surgery Case for $145,000 After Falsification of Records Exposed

The plaintiff visited the defendant plastic surgeon in order to address what she observed to be sagging in her breasts. Rather than recommending a simple mastopexy procedure, the defendant physician recommended that the plaintiff have breast augmentation with implants and a periareolar mastopexy. Ultimately, the plaintiff required further surgery because the periareolar breast augmentation and mastopexy failed to solve her problems. Indeed, the plaintiff contended that these procedures made her condition worse. She was also left with significant scarring, ptosis and capsular contraction.

The defendant contended that he provided the plaintiff with the appropriate informed consent. The defendant advised that he actually recommended a simple mastopexy procedure, but the plaintiff refused to follow this recommendation.

The medical chart that the defendant produced during discovery in the course of the litigation supported his factual position. Nevertheless, the medical chart that was produced by his office before the lawsuit was filed supported the plaintiff's contentions. John Ratkowitz was able to settle the case soon after the defendant was deposed and the two sets of medical records were revealed.

$450,000 Settlement at Mediation for Plaintiff Suffering Severe Hip Injury After Stepping Off Bus

The settlement was reached on December 4, 2004, during a post- mediation settlement conference. The matter was scheduled to be tried in the Hudson County Superior Court on February 7, 2005. The settlement followed an October 22, 2004 mediation hearing.

The accident occurred on June 6, 2002, as the plaintiff was exiting a commuter bus. The plaintiff paid his fare and descended the stairs of the bus, waiting for the doors to open so that he could exit. After the doors opened, he realized in mid-step that the bus was still moving. He attempted to stop his forward motion, but the momentum of the slowing bus pitched him forward and to his left out the front door. He landed first on his left foot, but his leg collapsed underneath him and he fell to his left side, sustaining multiple fractures of the hip and pelvis that required extensive reconstructive surgery at Columbia Presbyterian Hospital. The surgery was followed by a thirty-day hospital admission and extensive rehabilitation therapy.

The plaintiff advised the responding officers at the scene that he simply fell, and that the accident was nobody's fault. Despite this, he also repeatedly and consistently informed health care providers immediately after the accident that he fell when attempting to exit a moving bus. The defendants denied that the bus was moving. Both sides retained biomechanical experts to address this factual dispute.

In the midst of the bodily injury litigation, a declaratory judgment action was filed by the insurance company for the defendant carrier, in an attempt to deny coverage for the accident.

In addition to a biomechanical expert, the plaintiff retained an expert in bus safety. The plaintiff also had an orthopedic, a neurology and a urology expert who were prepared to testify about the plaintiff's injuries.

Attorney John Ratkowitz represented the plaintiff throughout the course of the litigation and in the declaratory judgment action.

Attorney John Ratkowitz Appointed to the Editorial Board of Medical Malpractice Law and Strategy.

On February 17, 2009, attorney John Ratkowitz (Click here for Bio) was appointed to the Editorial Board of the a national publication, Medical Malpractice Law and Strategy. Medical Malpractice Law and Strategy is a national monthly newsletter available to subscribers both in print and online. It features scholarly articles and provides physicians and attorney subscribers with current news on judicial, legislative and medical developments concerning the subject of medical malpractice. Medical Malpractice Law and Strategy is published by Incisive Media, a global information provider serving the financial and professional services markets. Mr. Ratkowitz joins an Editorial Board comprised of nationally recognized attorneys and physicians who have published articles related to the subject of medical malpractice.

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Medical Malpractice Claim Settled on Behalf of 70 Year-Old Cedar Grove Resident Injured by Negligent Spinal Surgery.

The plaintiff underwent spinal surgery on October 12, 2004. During the operative procedure, a surgical screw was negligently placed, and as a result it was lost when it fell outside the operative field. After three hours of unsuccessfully searching, the surgeon elected to leave the screw inside the plaintiff's body. Additional hardware that was inserted into the plaintiff's spine was also left inadequately secured.

Post-operatively, the plaintiff and his wife consulted another spinal surgeon, who recommended a second operation to remove the screw and resecure the additional hardware. This occured, but was followed by several additional operative procedures because of the development of a post-operative infections.

Mr. Ratkowitz (Click here for bio)resolved the case after the depositions of the plaintiffs and the defendant.

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