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