New CMS Policy on Preventable Injuries and Errors

Limiting Liability Exposure and Protecting Hospital Medicare Reimbursement

CMS proposes ending Medicare payments for surgical errors beginning in 2009

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, March 26, 2009

Course Materials

This seminar will offer insights into CMS' new policy against reimbursing healthcare providers for patient care involving preventable errors and surgical mistakes. The seminar will offer best practices for healthcare providers and their counsel for complying with the new standard and avoiding liability.


Beginning October 2008, CMS stopped paying the costs to treat selected preventable hospital-acquired conditions. On Dec. 2, 2008, CMS proposed adding three types of surgical mistakes to the “never events” for which it will not pay. The Medicare statute prohibits billing patients for these costs.

A recent study on patient safety found that the Medicare program paid $8.8 billion from 2004 to 2006 for medical errors. During this period, medical errors were made in three percent of all hospital admissions and resulted in 238,337 preventable deaths.

Attorneys fear the new policy will allow CMS to determine the appropriate standard of care and define “preventable error” in medical malpractice cases. They are also concerned the new policy will toughen pre-admission screenings, thereby increasing Americans With Disabilities Act (ADA) claims.

Listen as our panel of healthcare attorneys examines the likely impact of the new CMS policy prohibiting payment for preventable errors on hospitals and physicians, other healthcare providers and suppliers and offers best practices to limit liability exposure.



  1. Overview and impact of new CMS policy
    1. Conditions and events covered
    2. Reporting of secondary diagnoses present on admission
    3. Overview of CMS hospital value-based purchasing plan
  2. Legal implications of new policy and best practices to minimize liability
    1. Lingering questions
      1. When is an error preventable?
      2. Is a preventable error negligence per se?
      3. Is the role of the medical expert in malpractice cases now obsolete?
      4. Must/should medical errors be disclosed?
      5. Can private insurers use strict liability test to deny payment?
    2. Best practices to minimize liability exposure
      1. Assess and document patients’ conditions at time of admission
      2. Develop and enforce nondiscriminatory admissions policies to avoid ADA exposure
      3. Implement or update quality and safety policies
      4. Train hospital staff on prevention of errors and reducing infection rates


The panel will review these and other key questions:

  • What types of medical errors are covered under the new CMS policy?
  • Is a preventable error considered negligence per se under the new policy?
  • How can healthcare providers limit their liability exposure for patient mistakes?
  • What are the best practices for providers to follow to protect their Medicare provider status?


Maruca, William
William H. Maruca

Fox Rothschild

Mr. Maruca has extensive experience in healthcare law, including Medicare compliance. He counsels hospitals and...  |  Read More

Catherine Sreckovich
Catherine Sreckovich

Managing Director
Navigant Consulting

She has extensive experience working with healthcare payers, providers and managed care organizations to develop and...  |  Read More

Paula G. Sanders
Paula G. Sanders

Post & Schell

She represents clients on Medicare and Medicaid survey and certification, compliance, and fraud and abuse issues. She...  |  Read More

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