Hospital Falls And Medicare's New "Never Event" Rules--Can Hospitals "Restrain" Themselves?

As of October, 2008, Medicare announced that it would no longer reimburse hospitals for certain injuries and conditions, known as "never events," that Medicare believes should never happen in hospitals. For example, "wrong site surgery" (operating on the wrong body part) and leaving foreign objects in patients during surgeries are two examples of "never events." Translation: if these things happen in hospitals, Medicare will not reimburse hospitals for the medical costs for the surgeries, follow up care, etc.

So far, so good. It always slayed me that, before these new rules, hospitals or doctors could actually be paid for entirely preventable medical mishaps like leaving foreign objects in patients. But Medicare also added hospital falls to this list. Here's where things get a bit dicey.

As I have written before, patients injured in hospital falls can be tricky situations. First, many falls are preventable due to simple inattention, failure to follow established rules and protocols, inadequate staffing, etc. However, in fairness to hospitals, some patient falls are not preventable even with the best of care and even if all the rules and procedures are followed. I have both successfully litigated some hospital fall cases, and have turned down others in cases where I felt that there was no negligence involved, or it would be difficult to prove.

Medicare's purpose in formulating its list of "never events" is clear: to promote an increased emphasis on patient safety by creating a financial disincentive to hospitals in the event that these "never events" continue to occur.

Enter the "law of unintended consequences." According to a recent article in The Boston Globe, a Harvard Medical School Physician believes that Medicare's refusal to pay for patient falls in hospitals will encourage hospitals to use more
physical restraints to reduce the risk of falls. While another physician in the article disagreed with this assessment, the point is that hospitals may be considering increased use of physical restraints in the future as a method of preventing falls.

What's the lessson of all this if you have a loved one in the hospital? If you are noticing that he or she is being regularly restrained, you are entitled to know if there is a legitimate medical reason for it, or whether the hospital has instituted an aggressive restraint policy as a result of these new Medicare rules. At least it's a conversation worth having with the nursing manager. The bottom line is that if a hospital is going to restrain patients, it should be for legitimate medical reasons rather than financial ones...