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David Lowe
David Lowe
Attorney • (414) 727-2200

Medical Malpractice Litigation Unlikely To Change Despite Medicare's Refusal To Pay For Hospital Errors

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Effective October 1, 2008, Medicare will no longer reimburse hospitals for extra medical services provided because of hospital errors.

The new rule will apply to the following list of "reasonably preventible complications":

  • Objects left in the body during surgery (retained foreign objects)
  • Air embolism
  • Blood incompatibility
  • Falls and trauma
  • Stage 3 and 4 pressure ulcers
  • Vascular catheter-associated infections
  • Manifestations of poor blood sugar control
  • Deep vein thrombosis and pulmonary embolism after total knee or total hip replacements
  • Surgical site infections of certain types

The first three conditions are termed "never events", meaning serious preventible events.

Though Medicare sees these cases to be so straightforward that they will no longer pay for the consequences, those of us who represent patients injured by hospital and medical malpractice know that the hospital liability insurance carriers defend the cases and force the patients to litigate them. Despite what seem like obvious errors, the insurers usually argue that the patient cannot meet the burden of proof to show that the complication was caused by negligence of the hospital employee or physician, or that the negligence was the cause of the patient’s injury or death.

Medicare has now created its own remedy to avoid the financial consequences of preventible hospital errors, but nothing will change for the injured patients. They will still require aggressive legal representation to obtain fair compensation.