Defending a case involving “never events” is a tall order, in part because so many of the “never events” listed by the National Quality Forum (NQF) and Centers for Medicare and Medicaid Services (CMS) – the two primary organizations that publish the lists – are truly events that should never happen, such as performing surgery on the wrong patient or discharging a newborn to the wrong person. The fact the complication involved in your case – whatever it may be – is on the same list as these obviously negligent mistakes allows a plaintiff’s lawyer to paint what happened in your case in a very unflattering light.
Of course, you know several so-called “never events” are not always preventable and don’t necessarily indicate anyone was negligent. This is particularly true of relatively common occurrences such as pressure ulcers, patient falls and post-surgical infections. Patients with poor circulation who are immobile for long periods of time will sometimes get pressure ulcers no matter what preventative steps are taken, just as surgical sites will sometimes get infected.
The challenge at trial is getting your
jurors to understand and believe that.
We
have worked on numerous cases involving “never events” over the years, and the
most successful tactic we’ve found for defending these cases is educating jurors
about what the NQF and CMS lists actually mean.
The NQF list, first published in 2002, was intended to decrease the
frequency of such events by focusing attention on what it regards as events
that are usually preventable
(although some items on the list are considered always-unacceptable errors).
Even
more useful for defense purposes, the CMS list is simply an insurance classification of events and
complications that occur at hospitals and are not reimbursable by the
government. This list doesn’t mean the
events will never happen absent negligence, just that the government will never
reimburse the hospital for them. In a
world in which most people have experience with the government or insurance
companies denying coverage, this distinction can really resonate with jurors.
Defending
cases involving “never events” will remain a challenge, and there’s simply no
way to remove all of the sting from such a loaded term. But by educating jurors about the true
meaning of “never events,” you can at least get over the first hump and get the
jury to consider the circumstances and the merits of the care in this particular case and decide
whether the complication was truly avoidable.
If you’re working on a case involving a
“never event” or some other tricky complication, we’d love to help you figure
out the best approach. Contact Senior
Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net
to find out how we can help.
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