Plaintiff Alert Signals – Never Events

Whether you are screening medical malpractice cases for plaintiff or defense, as a Certified Legal Nurse Consultant, you should be on the lookout for those obvious meritorious cases. When you see them, the red flags go up as long as there is significant injury or death. For example, maternal death gets everyone’s attention. The plaintiff CLNC® consultant’s response is – this is one the plaintiff attorney should absolutely represent. The defense CLNC® consultant’s initial response is – the defense should settle and settle fast.

Plaintiff attorneys usually want to see significant injuries, even in obvious cases of medical malpractice. They have to weigh the cost of litigation against the return. They must consider if it makes sense. They don’t want to spend $150,000 to win back $250,000.

The Centers for Medicare and Medicaid Services (CMS) recently made it so easy for plaintiff attorneys to successfully litigate 13 types of medical malpractice cases that plaintiff attorneys may be more willing to take on these 13, even if the damages do not meet their usual expected criteria.

To start at the beginning, the National Quality Forum (NQF) endorses a list of 27 serious, preventable and reportable “Never Events.” CMS, issued a ruling last year, effective October 1, 2008: CMS would no longer reimburse for 10 selected “Never Events” – events that should never happen and which are clearly caused by the hospital and/or its staff. Then, effective January 15, 2009, CMS issued another ruling adding three additional, surgery-related “Never Events.” In other words, CMS is trying to save lives by saving money.

Cases involving “Never Events” account, according to AON, for a large percentage (12.2% or more) of medical malpractice claims and will be difficult to defend and easy for the plaintiff attorney to settle fast, thus reducing their litigation costs. Insurance companies will fear taking these cases to trial and losing at great expense. They can settle out of court cheaper.

“Never Eventland” provides the perfect playground for a law firm’s new, young and inexperienced associate attorneys to practice on.

Add these 13 CMS “Never Events” to your “Plaintiff Alert Signal” list.

  1. Unintentional retention of a foreign object after surgery.
  2. Air embolism.
  3. Blood incompatibility.
  4. Pressure ulcers (Stages III and IV).
  5. Hospital-acquired injuries from falls and certain traumas (fracture, dislocation, intracranial injury, crushing injury, burns and/or electric shocks).
  6. Manifestations of poor glycemic control.
  7. Catheter-associated urinary tract infections (UTI).
  8. Vascular catheter-associated infection.
  9. Deep vein thrombosis (DVT) or pulmonary embolism following total knee replacement and hip replacement procedures.
  10. Surgical-site infections following certain orthopedic procedures, mediastinitis following coronary artery bypass graft (CABG) and/or following bariatric surgery for obesity.
  11. Surgery on the wrong body part.
  12. Surgery on the wrong patient.
  13. Wrong surgery performed on a patient.

Educate your attorney-clients about “Never Events.” Offer to do a 20-minute presentation for all of the attorneys in the law firm. Even with attorneys, small wins are good.

Success Is Inside!

9 thoughts on “Plaintiff Alert Signals – Never Events

  1. Thank you once again Vickie for helping us help others and for helping us grow our CLNC® practices.

  2. On the other side of the litigation arena, the defense, it is very important for the Certified Legal Nurse Consultant to research, study and learn exactly what is meant by “Never Events” per the Medicare definition. What is called a “Never Event” is often not as it appears.

  3. 6 out of 13 CMS Never Events relate to surgery, and since CMS is about reimbursement I would consider looking at the Surgical Package Concept as well. Breaking a surgical service into its multiple components, and reporting each component separately for the purpose of increasing reimbursement constitutes a form of unbundling or fragmentation.

    As CLNC® consultants plod through medical records it is best practice to tune in to coding practices. The 2008 Senate Homeland Security Investigations report urged the CMS to find better ways of preventing fraud by checking to see whether diagnosis codes are related to reimbursed supplies, and to reject claims with inappropriate codes.

  4. Thank you!! I appreciate these ‘nuts and bolts’ types of articles as they move me more toward the ‘aha’ moments of how to integrate my experience into my CLNC® practice.

  5. Maria makes a great point about looking at coding practices. I just finished an online course about medical record coding/billing. Learning that process has given me a new perspective as I review bills.

  6. Very informative-Thanks!

    It would be a comfort to see the misdiagnosis of Lyme disease to be added to the Never Events. In this part of the country, the Northeast, it is continually misdiagnosed leaving many people with permanent disabilities. Lyme disease has vague symptoms which occur in a progression.

    For my fellow CLNC® consultants practicing in the Northeast, plaintiff or defense, please be tuned into this debilitating disease, remembering the only expert physicians in Lyme disease are Rheumatologists.

  7. I have worked in the operating room for 19 years and have seen my fair share of “Never Events.” The hospital is always striving to eliminate them, but they still happen. This is a very informative article and makes me realize even more how my experience in the OR can benefit me as a CLNC® consultant.

  8. This is a great door opener [or re-opener] for some attorney clients and a must have door prop for others. What you’ve packaged in this article Vickie, will provide a gold mine of value to them and I relish the opportunity to be the bearer of that gold.

    Thank you for another brilliant marketing strategy, packaged and ready to go. I will use this as but another means to stay in the minds of my clients and to introduce myself to others. “Ka ching, ka ching!” Loving it….! Thanks again!

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*The opinions and statements made by Vickie Milazzo, the founder of Medical-Legal Consulting Institute, Inc. are based on her experiences and expertise, should not be applied beyond the specific context provided, and do not guaranty or project actual results. Vickie Milazzo is no longer involved in the operations or management of the business, but is involved as an independent education consultant.

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