Surgical “Never Events” – Underreported and Undercompensated

Surgery does not always go as expected.  Sometimes, surgeries simply fail to improve the patient’s conditions.  Other times, surgery may worsen the patient’s condition.

This does not mean that medical malpractice has occurred.  In fact, in the great majority of these cases, medical negligence played no role in the poor outcome.

However, there are some surgical errors that are inexcusable.  These have made the list of “never events” for both the National Quality Forum and the Centers for Medicare & Medicaid Services (CMS).

“Never Events” in Surgery

“Never events” as the name suggests means that these types of medical errors should absolutely never occur.  Not even one is acceptable.  This may sound a little harsh until you hear the list.

The list of surgical error never events include the following:

1. Foreign objects left in the patient following surgery such as surgical instruments, sponges, towels, or other foreign objects.  Yes, this does happen.  According to the a study from Johns Hopkins on surgical never events, it happens 39 times per week.
2. The wrong surgical procedure is performed on the patient.  This might occur in a variety of ways, such as when the patient charts are confused or inappropriate anesthesia is applied.  The same Johns Hopkins Study found this occurs 20 times per week.
3. The surgery is performed on the wrong body part.  This perhaps occurs most frequently with paired organs or limbs such as operating on the wrong knee or removing the wrong kidney.  According the Johns Hopkins study, it occurs 20 times per week.

All told, the study found that these so-called never events occur 4000 times per year in U.S. hospitals.

The Costs of Surgical Never Events

It is estimated that the cost of these never events to the healthcare system over the period from 1990 to 2010 was about $1.3 billion.  However, this figure grossly underestimates the true costs of these errors since it in no way accounts for the costs to the patient and the economy.

Both the Johns Hopkins study and the American Medical Associations (American Medical News) agree and the National Practitioner Data Bank (NPDB) upon which the study was based, show that 90% of injured patients receive no compensation at all.

This is remarkable for many reasons particularly when viewed in light of the public’s acceptance of the insurance industry driven myth of an ongoing crisis of frivolous medical malpractice claims.

It is more remarkable still when you understand the numbers related to serious injury and death associated with these surgical never events.  Keep in mind these are not numbers generated by trial attorneys but by Johns Hopkins, the American Medical Association and the National Practitioner Data Bank (NPDB).

Few Patients Actually Compensated

Again drawing from the Johns Hopkins study, which drew its data from the NPDB, these surgical never events led to the wrongful death of the patient 6.6 percent of the time, and permanent injury to the patient 32.9 percent of the time.

The report does note that temporary injury occurred 59.2 percent of the time.  However, keep in mind that temporary does not mean minor.  There are many serious injuries suffered in hospitals from which the patient recovers.  It might just be hell getting there for the patient and his or her family.

Now what seems to be the most shocking and enlightening revelation from the studies, the American Medical News (published by the American Medical Association) suggests that 90 percent of the patients harmed through surgical never events received no compensation at all.

Likely Underreporting of Surgical Never Events

The Johns Hopkins study notes, “By law, hospitals are required to report never events that result in a settlement or judgment to the NPDB.”  What’s wrong with this picture?

If 90% of patients receive no settlement or judgment and only never events resulting in settlements or judgments must be reported, it is safe to say that these events are grossly underreported.

If only settlements or judgments must be reported, then that means that any reports initiated by patients and families without the assistance of an attorney do not get included in the National Practitioners Data Bank.

Even those cases where an attorney does get involved but does not see the case to completion would not be reported. This might occur for any number of reasons, perhaps most frequently when the huge expense of pursuing a medical malpractice claim overburdens the lawyer’s finances.

Repeat Offenders and Lack of Consumer Knowledge 

The reports suggest that there may be a problem with repeat offenders.  It is estimated that 62 percent of the offenders had “more than one separate malpractice report.”  Worse yet, 12.4 percent had been involved in other surgical never events.

Presumably, more than one can cover a lot of ground.  “Other surgical never events” suggest the possibility of offending doctors having multiple never events.  Keeping in mind that a never event should never happen, this might be something that a patient and his or her family might want to know in advance.

But as of now it is not possible, at least in New Mexico.  The only way to know at this point is if the doctor was sued for malpractice.  This would be done by searching www.nmcourts.gov.  However, many of these suits are dismissed with confidential settlements so that a consumer would not be able to tell what actually happened.  Moreover, the great majority of medical malpractice cases do not result in a lawsuit at all.

Patient’s Right to Know

The reports do all suggest that there should be greater reporting, even suggesting that the information be available to patients.  However, this is a long way off.

The only recourse now is after the fact, when the harm from the surgical never event has already been done.  Only by filing a lawsuit and conducting discovery will a patient or surviving family know the doctor’s record or malpractice and/or never events.

It seems safe to say that most patients and families would much prefer their health to a lawsuit following serious and permanent injuries or the wrongful death of a loved one.  Don’t believe it when you hear or read anything different.