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Medicare’s decision not to pay for preventable hospital injuries such as falls and infections is being blasted by health care attorneys who fear the new policy will trigger more litigation and administrative headaches. Attorneys representing hospitals and doctors argue that the policy, which goes into effect in October 2008, will only complicate an already convoluted malpractice area by adding a new issue to the mix: What is preventable in a hospital, and what is not? Under the new Medicare policy, the government has stated that it will not reimburse hospitals for eight injuries, including patient falls, pressure ulcers, several types of infections, removal of objects left in the body during surgery and injury caused by incompatible blood products. The rule change also prohibits hospitals from billing patients for preventable mistakes. “Litigators are looking at this and thinking, ‘This is going to create a lot of work,’ ” said William Maruca, a health care partner in Philadelphia-based Fox Rothschild’s Pittsburgh office who counsels doctors on compliance matters. Maruca said the new policy is a step toward federalizing malpractice law, where the government will dictate the appropriate standard of care and what constitutes a mistake � a move that will benefit plaintiffs’ lawyers, he said. The boost for plaintiffs, he said, is that they’ll now be able to argue before jurors that Medicare wouldn’t pay for a particular injury because they declared it a mistake, thus proving malpractice. “It will give plaintiffs’ lawyers more ammunition in proving malpractice,” Maruca said. More ADA claims Maruca also expects the policy will induce a high amount of preadmission testing, with hospitals taking extra steps to weed out those who are predisposed to developing infections or a particular problem. The additional testing will lead to a lot of Americans With Disabilities Act litigation over whether patients were turned away from elective procedures because they were deemed at high risk for infections or falls because of their disability. Jack Wenik, partner at Newark, N.J.-based Sills Cummis Epstein & Gross, also foresees the policy creating more malpractice problems for the health care industry. “If Medicare is deciding what is and is not preventable, that will surely lead to more litigation,” Wenik said. Medicare officials would not speculate on whether the new regulations would trigger litigation. They stressed that the regulations were required by the Deficit Reduction Act of 2005, and that they are not punitive in nature, but rather aim to give hospitals a financial incentive to take steps to prevent hospital-acquired conditions that are reasonably preventable. “What we’re trying to do here is to move us away form being a passive payer of services to becoming an active purchaser of high-quality care,” said Herb Kuhn, deputy administrator for the Centers for Medicare & Medicaid Services. Sean Dwyer, a litigator who defends hospitals and physicians in malpractice suits and regulatory matters, expects that infections, falls and bed sores will create the biggest legal headaches for health care providers. Those injuries will wind up being litigated the most, he said, with hospitals filing administrative appeals and federal lawsuits arguing those types of injuries aren’t always preventable. “The definition of preventable injuries is up in the air at this point,” said Dwyer of New York’s Havkins Rosenfeld Ritzert & Varriale. “There are many instances � especially when you’re dealing with geriatric accidents � where falls or bed sores aren’t preventable.” Plaintiffs’ lawyers, meanwhile, say the Medicare plan stopping payment for mistakes is long overdue. Plaintiffs’ lawyer Jay Silberblatt of Silberblatt Mermelstein in Pittsburgh, said he has long argued at malpractice trials against paying hospitals for mistakes. “It never made sense to me that you could have a judicial determination that a health care provider was negligent, but was already paid for by an insurance company or Medicare,” he said. Silberblatt said the new legal issue being raised by the new Medicare policy is what entity determines whether negligence occurred and whether it was the health care that caused a patient to suffer harm. “Typically, what happens now is the patient files a medical malpractice claim against the health care provider,” he said. “It sounds like now, Medicare might make some type of predetermination.” Is that more ammunition for plaintiffs’ lawyers? “I really don’t know,” Silberblatt said. “I think only time will tell what impact this will have on the prosecution of medical malpractice claims.”

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