Medical Malpractice and “Never Events”
By David Carnes, Staff Writer
In the health care industry, a “never event” is an outrageous mistake that should never be committed by a health care provider. The National Quality Forum, a patient advocacy group, first coined the term “never event” and since then it has identified 29 such events, divided into six categories. The significance of “never events” is that if you can prove that one occurred, you are highly likely to win a medical malpractice lawsuit.
“Never events” are divided into six categories – surgical events, product or device events, patient protection events, care management events, environmental events, radiologic events and criminal events. Most of these events are directly or indirectly related to malpractice. Some of the most commonly reported “never events” include:
- Surgery on the wrong body part
- Accidentally leaving scalpels, sponges or other surgery equipment inside of a patient after surgery
- Administering a contaminated drug to a patient
- Administering the wrong drug to a patient
- Allowing the patient to develop bedsores due to inadequate care
- Artificially inseminating a patient with the wrong donor sperm
If you file a medical malpractice lawsuit, you will certainly need to seek compensatory damages. Compensatory damages compensate you for past and future medical bills, lost work time, pain and suffering, and any other losses that you may have incurred as a result of the event (possibly including attorney’s fees).
Punitive damages, on the other hand, are designed to punish the defendant for particularly outrageous conduct that goes beyond ordinary malpractice. The very nature of “never events” suggests that they are particularly likely to support a case for punitive damages. Judges are often reluctant to award punitive damages, however, and state laws often impose significant obstacles – some states require a high burden of proof, other states impose statutory damages caps, and some states even require that part of a punitive damages award be paid to the state government rather than to the patient.
Keep in mind two important when considering whether and when to file a medical malpractice lawsuit: (i) even though most medical malpractice claims are settled out of court, it may be necessary for you to file a lawsuit simply to pressure the defendant into settling for a reasonable amount, and (ii) if you wait until the statute of limitations deadline has expired, your claim will become worthless regardless of whether you file a lawsuit or seek an out-of-court settlement.
Although ordinary medical malpractice is upsetting enough, the fact that doctors are human beings prone to error indicates that no amount of legislation or enforcement will completely solve the problem. “Never events”, by contrast, involve shocking lapses of professional judgment and sometimes callous disregard for the well-being of patients who trust their health care providers with their lives. Punitive damages, and in some cases even criminal sanctions, should be aggressively pursued against the minority of health care providers that involve themselves in such disgraceful and horrifying conduct.