In law there is a doctrine called strict liability.
Strict liability means that no matter what you do to protect someone from an injury, if the person suffers an injury, you are liable for the consequences. You could have taken every possible precaution. Doesn’t matter. Injury = liability.
Usually strict liability is reserved for inherently dangerous activities, such as raising pet alligators or demolition. You want to blow things up? You better make darn sure that no one could possibly get hurt. Strict liability also applies to manufacturers who create products for human use. If someone gets harmed using the products, the manufacturer is liable for the injuries. Otherwise, manufacturers would feel comfortable putting potentially dangerous products on the market.
Now some insurance companies and our own federal government want to impose strict liability on hospitals. I started thinking about this the other day when we had a rash of patients who came in with injuries after slipping and falling. According to Medicare and to a growing number of insurers, falls are one of the growing list of “never events” that are not worthy of reimbursement. For example, see this January 7 article in American Medical News.
Here are a few more articles about insurers refusing to pay for the never events:
WSJ Article — Insurers Stop Paying for Care Linked to Errors
AM News — No Pay for “Never Event” Errors Becoming Standard
Group Calls on Hospitals to Waive Payments for “Never Events”
Don’t miss Happy Hospitalist’s “fairy dust” post about “never events,” either.
The National Quality Forum has identified 28 medical errors as “never events.” In other words, these 28 events should “never” happen. Some of them I agree with. For example, leaving an object in a patient after surgery should probably never happen. Operating on the wrong body part or performing the wrong surgery on the wrong patient should probably never happen.
But the list starts to get a little hazy the more you read it.
According to the NQF, patients should never die or have a “serious disability” associated with the use of contaminated drugs, devices, or biologics. First, notice how the hospitals are being put on the hook for products that the manufacturers provide to them. According to the NQF, if hospitals use a product in good faith and there is a “bad outcome” because of contamination of that product, the hospital doesn’t get paid. No matter what. Flu vaccine wasn’t packaged appropriately and someone gets sick from it? Doesn’t matter, hospital, you’re not getting paid to take care of the consequences. You are completely liable for the damages.
Applying this concept to the everyday world would mean that … contamination should never happen. If my kid pukes from spoiled milk in the refrigerator, the milk manufacturer should have to pay for all the medical treatment necessary to make my kid feel better.
According to the NQF, patients should never die or have a serious disability if a device is “misused” or “malfunctions.” If a poorly designed (but FDA approved) device is used in a hospital and the device malfunctions, the manufacturer who made the device bears no responsibility for the patient’s care. It only matters where the injury occurs. Because the device was used in a hospital and the injury occurred in the hospital, the hospital should have to pay for all of the care related to the malfunction. Makes a lot of sense.
Applying this concept to the everyday world would mean that … if the turn signal in my car malfunctions, I get into an accident, and I hurt my back, the city in which I am driving the car should have to reimburse me for my injuries. Doesn’t matter who manufactured the car, it only matters where the injury occurred when I was using the car.
According to the NQF, patients should never attempt suicide resulting in serious disability. Great idea. Impose strict liability on a hospital to ensure that no one has unexpressed suicidal tendencies on the inpatient wards. Maybe we can have a dream analyzer and personal psychotherapists for each patient. Every patient who is admitted should have a 24 hour sitter just to catch that one patient who wakes up from surgery craving a handgun, seeing flashbacks from the movie “Saw,” and saying, “Well, the surgery went OK. Rats. That didn’t work. Maybe I’ll try to hang myself to get out of paying the hospital bill.” Wonder if Glenn Beck’s insurers paid for his inpatient detox because of his suicidal thoughts after his hemorrhoid surgery.
Patients should never have a serious disability associated with a drop in blood sugar. Diabetics know that hypoglycemia “never” happens. Blood sugar drops … patient gets out of bed … patient drops … patient’s head bounces off floor … hospital pays. Strict liability.
The best one is that the NQF asserts that there should be strict liability when a patient suffers death or serious disability associated with a fall in the hospital. Falls should never happen. Everyone always ties their shoelaces. Old people always use their walkers. Dizzy people don’t exist. The unsteadiness and shuffling gait seen in Parkinson’s Disease? A figment of our imagination. If someone falls in the hospital, the hospital is liable.
Well, we can restrain demented patients who are fall risks, right? Wrong. Medicare rules only allow for the “least restrictive method” of restraint and must be discontinued at the “earliest possible time.” Restraint orders are good for a total of 24 hours.
Hospitals could have sitters watch old people who try to climb out of bed. As if the nurses aren’t overworked enough. Hey, now you have to dispense meds, clean patients, chart, feed patients, talk to families, talk to doctors, try to find some time to pee once per shift, be nice, AND watch all of your patients all of the time so they don’t fall out of bed. Why didn’t I think of that sooner?
Suppose a hospital believes that sitters are necessary to comply with these silly rules. Who is going to pay for the sitters? Won’t be the insurers. Won’t be the government, either. Enter the ABN. You have a sick relative who might fall in the hospital? YOU or your family might be stuck paying for these extra services to prevent these “never events” – even if they are unlikely to occur. If you refuse the services, maybe you’re going to be paying for any costs related to falls out of your own pocket. Insurance companies won’t pay for them – they’re “never events.” Hospitals will say that they gave you the opportunity to prevent the fall by paying for a sitter and you refused. Get ready for a jump in the cost of care.
Insurance companies allege that they have “patient safety” in mind when they implement these rules. Perhaps that is true. Are the costs associated with achieving 100% patient safety worth it when there are so many people in this country who can’t get basic health and dental care?
I think there’s another reason for these “safety rules.” With all the money that insurance companies save by by refusing to pay for these “never events,” does anyone actually think that the premiums for health care insurance are going to go down?
Charge more for premiums, pay less for medical care. Insurance companies have it made.
Soon even those with insurance could be in danger of bankruptcy due to hospital charges.
But that would “never” happen, would it?