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Medicare Changes: An Invitation For Malpractice?

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Author: Thomas R. Burnside, III


Will the new changes in Medicare improve the quality of healthcare or result in patient dumping?

Currently, the bill for Medicare (the US Government Health Insurance Plan) exceeds $400 billion dollars a year and is expected to rise as the baby boomers age. Medical malpractice contributes to much of this expense. Consider this scenario. A surgeon leaves a sponge in a patient during abdominal surgery. It becomes infected and requires antibiotic therapy, a lengthened hospital stay and a second surgery to remove. As a result, the cost of the ordeal effectively doubles all because of malpractice. If the patient is on Medicare, the government (ie. the taxpayers) picks up the tab—at least now. All of this is fixing to change, however.

Starting in 2009, Medicare will not cover the costs of "preventable" conditions, mistakes and infections resulting from a hospital stay. Therefore, under the above scenario Medicare would not cover the extra cost necessitated by leaving the sponge in the patient. The same will hold true for hospital acquired infections like MRSA. These will be considered a "secondary diagnosis," ie. something you did not have when you entered the hopsital, and the additional cost will eventually fall on the hospital itself since Medicare rules prohibit hospitals from charging you over and above what Medicare pays. How will this effect the quality and delivery of healthcare?

Admittedly, the rule makes sense. The hospital caused the problem so they should pay for it, right. What's not fair about that? And on a more mature level, it provides financial incentives for hospitals to improve the quality of care and double their efforts to combat infection, much of which is preventable. That alone is big since hospital acquired infections result in nearly 100,000 deaths a year in the US alone, according to the Centers for Disease Control and Prevention (CDC), with 2 million patients needing treatment that costs over 25 billion dollars a year.

But will it help the patients. Will malpractice increase or decrease. Only time will tell, but it will depend in part on interpretation of the term "secondary diagnosis." For example, hopsitals could become even more aggressive in their efforts to discharge patients regardless of whether they are ready to leave. This will be particularly true at the first signs of infection. If the patient is discharged early, develops an infection at home and returns to the ER, then the infection is a "primary diagnosis", present on admission, albeit a second admission after a premature discharge. Nevertheless, Medicare once again becomes the primary payor.

Another concern is the burden this will place on already overworked nursing staff. Infection task forces will be implemented and they will lay down additional guidelines and safeguards for nurses to follow, but will they adjust the staffing ratios to allow more time for compliance? Doubtful. You simply can't feed patients, clean bedpans, change IVs and—in the same amount of time you had before—double your efforts to protect against infection.

Consumer groups say the changes will give hospitals strong incentives to prevent such mistakes and thereby increase patient's safety from infections and procedural errors. I certainly hope that is true. But the change will also reduce the amount of money hospitals receive from Medicare, and can hospitals really improve the delivery of services with less income? It rarely happens that way. More often than not, when revenue drops, hospitals are forced to cut corners in order to save money. That makes it hard—impossible—to improve the quality of anything.

In the end, Medicare should save money—that is a good thing. But the patients will undoubtedly suffer. At the first sign of a "secondary diagnosis," the hospital will turn its attention to the financial realities of the situation. When they do, will their primary goal be to provide you with better care or get you out of the hospital? Again, only time will tell but the change could ultimately lead to more substandard care….ie. malpractice. Lets hope I am wrong.


About the author: Thomas R. Burnside, III is a personal injury attorney with the law firm of Burnside Wall LLP in Augusta, Georgia.


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