Medicaid will no longer pay when patients suffer from medical malpractice

Posted By Kinnard, Clayton & Beveridge || Jun 10, 2011

If a Medicaid patient is injured or sickened by medical malpractice, should the doctor whose negligence was to blame be paid for his or her services?

Under the Affordable Care Act (the health care reform law sometimes referred to as "Obamacare"), the answer is now "no."

The Centers for Medicare and Medicaid Services has just issued new rules prohibiting states from using Medicaid funds to pay health care providers when any of 26 "never events" occurs. "Never events" are examples of medical malpractice so egregious that the mere fact they occurred is proof of negligence.

Under Medicaid, the federal government reimburses states for a portion of the cost of treating those eligible for the program. Until now, states have been in charge of deciding whether to pay doctors, hospitals and other health care providers in cases where "never events" have occurred. Under the new rules, Medicaid will not allow states to pay the provider after a "never event."

What are the 'never events' that are considered clear medical malpractice?

The Centers for Medicare and Medicaid Services chose 26 "never events" that it considers clear examples of medical malpractice and refuses to pay for. Examples include:

  • Leaving surgical instruments, sponges or other objects in a patient's body after surgery
  • Giving a patient an incompatible blood type
  • Bedsores caused by failure to shift patients regularly
  • Infections caused by improper cleaning of catheters or surgical incisions
  • Broken bones or dislocated joints from slips and falls in health care facilities

Before the Affordable Care Act was passed, only 21 states had policies in place prohibiting payments to doctors and hospitals after "never events," and 17 of them formed their policies using a different list of "never events" than the one the Centers for Medicare and Medicaid Services uses.

The vast majority of those covered by Medicaid are people with low incomes. When the new rule was being considered, concerns were raised that hospitals and other health care providers would simply stop providing care for the poor if they weren't sure Medicaid would reimburse them in cases that were disputed. As a result, the new rule forbids states from reducing treatment for Medicaid patients in order to cover the cost of the new policy.

Categories: Medical Malpractice
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