Your Malpractice Risk When Your Hospitalized Patient Has a "Never Event"

Brian W. Whitelaw, Esq.


February 09, 2010

In This Article


Your longtime patient, Mr. Smith, is somewhat malnourished, and you've admitted him to the hospital for nutritional management. He's in his late seventies, has been self-sufficient his entire life, and is fully competent mentally.

He is a little shaky on his feet. Per your order, he is to be up only with assistance. You've clearly explained this to him, as have the nurses, and he expressed his understanding and agreement. However, when he needed to use the bathroom, he failed to call nursing, got up on his own, fell, and broke his hip.

Mr. Smith had to have a total hip replacement. He never fully recovered and died within a few months. Not long after, a process server entered your office and handed you a medical malpractice "wrongful death" lawsuit.

A few years ago, you would have had a more easily defensible case: Your decision-making and pre-fall documentation were excellent. Mr. Smith didn't follow the instructions he clearly understood, and he was responsible for his own fall. Unfortunately, however, the malpractice landscape has changed within the past 2 years. Since October 1, 2008, hospital falls are on the "never events" list of noncovered hospital-acquired conditions compiled by the Centers for Medicare & Medicaid Services (CMS). CMS adopted the list from one created by the National Quality Forum. Although the original list may have been part of an effort to encourage a safer health system, CMS has a different agenda: reduction of payments pursuant to the Deficit Reduction Act of 2005. Nevertheless, the CMS press release of January 15, 2009, specifically refers to "never events" as "serious, preventable errors in medical care."


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