“To amend title XVIII of the Social Security Act to repeal the Medicare sustainable growth rate and improve Medicare payments for physicians and other professionals, and for other purposes.”
Buried deep in the bill is a provision that states that standards set by the Centers for Medicare and Medicaid Services (CMS) for the non-payment of medical providers for preventable hospital acquired conditions will not serve as a standard for medical malpractice claims. The CMS list of non-compensable hospital acquired conditions was created in response to the billions in costs to Medicare and over 30 thousand patient deaths each year related to those highly preventable conditions.
When given billions in costs and hundreds of thousands of unnecessary patient deaths, the obvious political response is to suggest that the list of preventable medical errors should not serve as a standard for medical care, thus protecting the insurance industry from its medical malpractice coverage obligations and perhaps contributing to the escalating incidence of death by preventable medical error.
Medicare’s List of Non-Compensable Hospital Acquired Conditions
As of 2006, CMS stated the annual costs of “never events” at $9.3 billion and 32,600 deaths. To put this in perspective, the CDC Fact Sheet on Unintentional and Accidental Deaths states that there are a total of 130,557 such deaths each year. The top 3 causes on the 2013 list are: accidental falls at 30,208, auto accidents at 33,804, accidental poisoning at 38,851.
Keep in mind that CMS numbers on patient deaths relate only to Medicare/Medicaid covered medical care. That means that death by preventable medical error for Medicare patients alone would be right near the top of accidental death. Unfortunately, the CMS numbers pale in comparison to estimates of total deaths by preventable medical error which go as high as 440,000 per year.
Worse yet, according to an article in the Journal of Patient Safety, even these extraordinary estimates consider only deaths related to hospital care. According the article, “This is roughly one-sixth of all deaths that occur in the United States each year”.
CMS Statement of Basis for List of Non-Compensable Hospital Acquired Conditions
One very concise and readable assessment of the problem that led to the list was stated in the CMS’ Fact Sheet Eliminating Serious, Preventable, And Costly Medical Errors – Never Events.
As part of its ongoing effort to pay for better care, not just more services and higher costs, the Centers for Medicare & Medicaid Services (CMS) today announced that it is investigating ways that Medicare can help to reduce or eliminate the occurrence of “never events” – serious and costly errors in the provision of health care services that should never happen. “Never events,” like surgery on the wrong body part or mismatched blood transfusion, cause serious injury or death to beneficiaries, and result in increased costs to the Medicare program to treat the consequences of the error.
Bill to Prevent Medicare’s List from Creating Any Standards of Medical Malpractice
Having addressed the origin of the list, obvious savings to taxpayers and the improvement to medical care to Medicare and Medicaid patients, one paragraph on the 158th page H.R. 1470 seems fairly remarkable.
Buried at page 156 of the 158-page bill, there is a very brief provision that states:
“… The development, recognition, or implementation of any guideline or other standard under any Federal health care provision shall not be construed to establish the standard of care or duty of care owed by a health care provider to a patient in any medical malpractice or medical product liability action or claim.”
What is it they are referring to? You guessed it, it refers in part at least to the CMS list of non-compensable preventable medical errors and consequent hospital acquired conditions.
“Most Scientifically Sound Evidence” Forms Basis for CMS List
The Medicare list of non-compensable medical errors arose from national standards, which were developed by a wide array of healthcare related studies. These in turn resulted in “evidence based guidelines” upon which Medicare relied in the creation of the list.
According to CMS 2014 report, Evidence-Based Guidelines for Selected, Candidate, and Previously Considered Hospital-Acquired Conditions, “The result of this process is that guideline recommendations rely only on the most scientifically sound evidence base.” Naturally, one would not want to see anything like science establishing standards for medical care.
However, they are in fact by definition national standards to address a very real and very well documented national problem, which in the case of Medicare/Medicaid covered medical care, as of 2006, was $9.3 billion in annually and 32,600 avoidable lives lost.
So what is the point of the provision? This is the good question.
What is the Purpose of this Provision?
To answer this question, it might be asked when in the history of medicine would operating on the wrong body part in the safe confines of a hospital not be medically negligent? It seems safe to say that most patients, their families and the general public would have to agree with Medicare’s position that this type of medical procedure/error should not be compensated and that it was negligent.
So what is the real purpose of the bill? It seems fairly reasonable to conclude that the provision is for the protection of insurance companies. It most assuredly does not protect innocent patients and arguably does little to help doctors since it is highly unlikely that the law, if passed, would result in any decrease in premiums to doctors.
Goal of Language is to Keep Information from Juries
The debate is always wrongfully framed in terms of trial lawyers against doctors. This is a gross mischaracterization of the real issue. The real battle is between insurance companies and innocent patients and families harmed by medical error. The bill’s real harm no doubt rooted in the interests that it serves is in the message that it sends and the foundations that it will set moving forward.
The provision in the bill seems to be an opening volley in what will surely follow in the form of prohibitions on allowing juries to hear that these standards were breached. If, as the bill would have it, do not create standards, then medical experts could potentially be prevented from even referencing the items in court. After all, if they do not state standards, then mention of them would raise issues of relevancy, prejudice, and evidentiary issues.
The ultimate purpose, as there seems to be no other, is to hide information from a jury. This is information that a jury should hear. It does not mean that an item on the list is per se or even presumptive medical malpractice. The fact that an item is on the list would be just one element presented through expert medical testimony for the jury’s consideration. The medical experts on both sides are free to debate the item under the circumstances. The insurance company’s expert is even free to argue the item should not be on the list at all or that there were special circumstances negating the rules. The jury can weigh the evidence as it may.
No Need to Protect Medical Malpractice Insurance Companies from Jury
The battle is not between doctors and lawyers. It is between insurance companies and patients injured or killed through medical negligence. As is generally the case in politics, the money (i.e. insurance industry) is winning.
Make no mistake; the burden is on the patient. It is a very heavy burden and difficult to overcome as evidenced a steep decline in medical malpractice claims made over recent years and a very low success rates for the claims that are made. These statistics are particularly interesting and worrisome with skyrocketing estimates of annual deaths and injuries resulting from preventable medical errors.
Insurance companies have managed this remarkable con on the public and the medical profession through a long campaign decrying the mythological frivolous medical malpractice crisis. There simply is no such thing. But they have successfully sold the myth resulting in a steep continuing decline in claims made along with a steep continuing increase in malpractice premiums to doctors based upon the same myth.
It’s a pretty good deal if you can get it. Better yet, don’t stop there but somehow render national scientifically based medical care standards irrelevant and inadmissible. And do this on the backs of doctors; medical care providers and most of all innocent patients and families.
The jury should not be denied this information. It makes little sense to deny a jury the right to hear on this matter from the medical experts. In essence, that would be to deny the jury of mountains of research and studies leading to inclusion of items on the list simply by virtue of the item of being on the list.
Medical malpractice insurance carriers do not need further protection. Based upon the myth that the industry has created, they gouge doctors on one end on outlandish premiums and injured patients on the other through routine denial of claims. They do not need the added advantage of hiding evidence of clear violation of medical standards from the jury and this no doubt is the end game of the legislation.