New York Law Blog

Following up last week’s post on “never events” in regards to medical malpractice, here is the list of “28 errors that should never happen” from the National Quality Forum. The NPQ is a nonprofit health care safety agency, and this list represents “never events”, or avoidable errors.

1. Surgery on the wrong body part.
2. Surgery on the wrong patient.
3. Wrong surgical procedure performed on a patient.
4. Object left in patient after surgery.
5. Death of patient who had been generally healthy during or immediately after surgery for a localized problem.
6. Patient death or serious disability associated with the use of contaminated drugs, devices or biologics.
7. Patient death or serious disability associated with the misuse or malfunction of a device.
8. Patient death or serious disability associated with intravascular air embolism.
9. Infant discharged to wrong person.
10. Patient death or serious disability associated with patient disappearing for more than four hours.
11. Patient suicide or attempted suicide resulting in serious disability.
12. Patient death or serious disability associated with a medication error.
13. Patient death or serious disability associated with transfusion of blood or blood product of the wrong type.
14. Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy.
15. Patient death or serious disability associated with the onset of hypoglycemia, a drop in blood sugar.
16. Death or serious disability associated with failure to identify and treat hyperbilirubinemia, a blood abnormality, in newborns.
17. Severe pressure ulcers acquired in the hospital.
18. Patient death or serious disability due to spinal manipulative therapy.
19. Patient death or serious disability associated with an electric shock.
20. Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances.
21. Patient death or serious disability associated with a burn in the hospital.
22. Patient death associated with a fall suffered in the hospital.
23. Patient death or serious disability associated with the use of restraints or bedrails.
24. Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist or other licensed healthcare provider.
25. Abduction of a patient.
26. Sexual assault on a patient.
27. Death or significant injury of a patient or staff member resulting from a physical assault in the hospital.
28. Artificial insemination with the wrong donor sperm or donor egg.

Are doctors prescribing certain narcotics without fully understanding them? As popular pain medication OxyContin became too expensive for insurance companies to pay for, doctors turned to Methadone, which was previously used to rehab heroin addicts. For some it is working, for others it leads to death. Many doctors are not familiar with the drug, and are prescribing it in too high of a dose, as well as not advising their patients on how to properly use the drug.

A synthetic form of opium, it is cheap and long lasting, a powerful pain reliever that has helped millions. But because it is also abused by thrill seekers and badly prescribed by doctors unfamiliar with its risks, methadone is now the fastest growing cause of narcotic deaths. It is implicated in more than twice as many deaths as heroin, and is rivaling or surpassing the tolls of painkillers like OxyContin and Vicodin.

“This is a wonderful medicine used appropriately, but an unforgiving medicine used inappropriately,” said Dr. Howard A. Heit, a pain specialist at Georgetown University. “Many legitimate patients, following the direction of the doctor, have run into trouble with methadone, including death.”

Issues with this particular drug run deep, especially with the Food and Drug Administration. The FDA actually had the drug listed in “dangerously high dosages” within Methadone packaging until the last quarter of 2006. It took an increase in deaths for the FDA to examine the recommended doses in drug packaging, and now the organization is considering calling for doctors who are going to prescribe the drug to take a special class on the matter to prevent errors and medical malpractice issues.

Tony Davis, a contractor in Victorville, Calif., had just turned 38 in 2004 when, after years of migraines and back pain, he saw a new pain doctor in his Kaiser Foundation Health Plan. The doctor, who had already given him the sedative Xanax, prescribed methadone because of his continued pain.

The second day on the two medications, Mr. Davis said, “I’m feeling really weird,’ ” recalled his wife, Pebbles Davis. The two lay down for a nap and when she woke up, her husband was dead.

Ms. Davis recalled that the coroner had told her, “Given the medicines he was on, his brain forgot to tell his heart to beat and his lungs to pump.” The case went to an arbitrator, who ruled that although Mr. Davis had overused his drugs in the past, the doctor had failed to warn him about the new risks of starting methadone together with Xanax and that the care was substandard. Ms. Davis was awarded more than $500,000. “I never had any idea of the risk nor did my husband,” she said.

The drug may be misunderstood, with the general population believing that any narcotic death would be attributed to patient misuse, but that may indeed not be the case:

As early as 2003, alarmed by the rise in methadone-related deaths, the Substance Abuse and Mental Health Services Administration made an urgent call for more systematic and detailed state and national reporting about opioid deaths — a call that still goes unanswered.

Misuse by abusers was first seen as the problem, but now, said Dr. H. Westley Clark, director of the Center for Substance Abuse Treatment of SAMHSA, “We know that a significant share of the methadone deaths involve doctors making well-intended prescriptions.”

To see a video story on this subject, visit the New York Times video section.

In September of 2007, the state of Minnesota decided it was no longer going to charge patients or insurance companies for medical errors from it’s hospitals. Now 23 states have followed suit (including New York) in making sure patients do not have to pay for gross errors in hospitals. The errors, called “never events”, are culled from a list of 28 errors created by the National Quality forum which include things such as surgery on the wrong body part and surgery on the wrong patient.

The idea of cutting payments for avoidable errors has gained considerable momentum in the year since federal officials sparked the shift by announcing that, starting Oct. 1, Medicare will no longer reimburse hospitals for the extra costs of treating certain injuries, infections and complications that occur after admission.

Medicare officials this month expanded the hotly contested list of eight errors for which it won’t pay to augment one condition and add two more: surgical site infections after elective orthopedic and bariatric operations; severe complications from poorly controlled blood sugar; and deep vein thrombosis or pulmonary embolism following total knee and hip replacement surgeries.

In addition, the agency urged state Medicaid directors nationwide to implement the non-payment policies, already in effect in Massachusetts, New York and Pennsylvania. It’s not clear how many others plan to follow.

Insurance companies are also getting in on the act, with the three biggest in the country (Cigna, Aetna, and Blue Cross/Blue Shield) saying they will also no longer pay for serious medical errors. But is it as simple as reading items off of a checklist and seeing if a medical error fits into a certain category?

“Just because something defacto occurred on that list, that doesn’t mean that it’s defacto the fault of the provider,” said Karen Nelson, senior vice president for clinical affairs at the Massachusetts Hospital Association.

Some of the conditions on the lists kept by NQF and Medicare may not be preventable or under the hospital’s control, added Dr. Dan Stultz, president of the Texas Hospital Association, which announced a new policy last month that recommends not billing for nine preventable errors.

“ABO blood compatibility? I don’t have a problem with that,” Stultz said. But if a titanium medical device fails because of a manufacturing defect, the hospital shouldn’t be held responsible, he added.

Many questions still arise when it comes to the situation, and a vast number of kinks will have to be worked out of the system, but it is a great step in the right direction to addressing the issue of medical errors and malpractice.