COMMENTARY

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

Brian W. Whitelaw, Esq.

Disclosures

February 09, 2010

In This Article

What Is Your Best Defense?

How do you answer these questions? Can you even defend this lawsuit? The government sure didn't make it any easier, but it is still possible to answer questions like these and defend such a suit.

First, if you receive a claim arising out of a "never event," make sure your attorney is aware of the "never event" issue! Some are not. Discuss it with your lawyer. He or she will provide specific advice on how to handle these questions in deposition. Depending on the law in your state, the following responses may be most useful:

  • "I am familiar with the cost reduction policy established by the CMS as part of the Deficit Reduction Act. I believe this is a reimbursement mechanism, not a statement of the standards for quality of care".

  • "It is my understanding the standard of care in my case is set by state law, not CMS policy. Despite the statements by CMS, many of the so-called ‘Never Events’ cannot be prevented even with totally reasonable care that meets and even exceeds the standard."

  • "The only way to totally prevent patient falls would be to disable all hospital patients with leather restraints or medication, and I am sure nobody wants that."

The best way to defend a case arising out of a "never event" is for your attorney to move the court for an order precluding references to the phrase "never event" at trial.

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