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'Never Events' and Health Care Ethics

by Emily Friedman

First published in Hospitals & Health Networks OnLine, April 1, 2008

Many third-party payers have announced that they will no longer reimburse providers for "never events"-medical mistakes that should not occur under any circumstances. Similarly, there are certain ethical lapses-and complete collapses-that should be treated just as harshly.

Emily Friedman

It is common for pertinent and catchy phrases to sweep through health care like a tornado through Texas; terms such as "pay for performance" and "community benefit" resound in our sector on an almost hourly basis. Another phrase has appeared in recent years in connection with the push for improvement in health care quality: "never events." Simply put, these are adverse incidents that should never happen.

The concept originated with the landmark 1999 Institute of Medicine report, To Err Is Human, which estimated that 98,000 hospital patients die every year as a result of medical error. In 2002, the National Quality Forum (NQF) issued a list of 27 "serious, largely preventable" adverse events that the NQF said should be publicly reported. These range from surgery on the wrong body part to fatal medication errors to sexual assault of a patient on the premises of a health care facility. (The list was updated in 2006 and now contains 28 items.) In 2003, Minnesota became the first state to require hospitals to report all of what were then 27 events; by 2007, 25 states required reporting of at least some of them.

Meanwhile, payers ranging from Medicare to members of the Leapfrog Group to insurers such as Aetna and WellPoint began considering an obvious incentive: not paying providers for these taboo events. In August 2007, Medicare announced that it would no longer pay for eight of the incidents. In November of that year, Massachusetts hospitals announced that they would not charge for nine serious medical errors; hospitals in other states took similar action. In January of this year, Aetna announced that it would not pay for any of the updated 28 events cited by the NQF. WellPoint is conducting a pilot program in Virginia that will not pay for four types of error; United Healthcare, Cigna and all 39 Blue Cross and Blue Shield plans are exploring similar restrictions.

Why Not Ethics?

Few could find fault with these policies; indeed, they are long overdue (although a cynic might wonder if these payers would be so quick to act if preventing these errors would cost them more money, not less). I have long wondered why insurers continued to pay for care at a California hospital where two cardiologists had been busily performing bypasses and catheterizations on healthy patients, after this had been revealed in the public press. I asked a representative of one payer about this, and he said, "Oh, we're afraid the surgeons will sue us." Now, there's a good reason for not taking action!

But as I watch this most welcome surge of effort to reduce the incidence of "never events," I regret that its focus is almost strictly clinical. Although the NQF list does contain a few non-clinical items, such as impersonating a physician or nurse or abducting a patient, most are limited to patient care situations.

And there's nothing at all wrong with that. I just think the scope is too narrow, because there are ethics failures -- some of which can lead to the problems on the NQF list -- that are just as serious, just as dangerous and just as much in need of penalty. If insurers won't pay for sponges left in surgical patients, I don't know why they are willing to pay for care that is forced onto a cogent, conscious, but unwilling patient who has made her wishes abundantly clear.

So, in an effort to broaden the debate, I hereby offer my list of ethics "never events," for consideration by payers, but even more so by health care professionals and organizational leaders.

Twelve Ethics "Never Events"

Knowingly allowing preventable harm to patients. As I have observed before, if there is one aspect that is common to almost all cases of serial murders in health care, it is that somebody knew. And somebody almost always knows when patients are being harmed. The pattern is usually obvious: A particular nurse is always on duty when the mortality rate in the unit increases; one surgeon's patients almost always develop sepsis; patients suffer burns altogether too often on that particular radiation oncology service. The behavior behind the harm may be psychopathic, as in the case of killer physicians and nurses, but much of the time it is just sloppiness or obstinacy, such as the stubborn refusal of clinical professionals to wash their hands. A hundred and fifty years ago, obstetricians who did not wash their hands between deliveries infected mother after mother with what was then known as "childbed fever," which was often fatal. (Why on earth are we still talking about the necessity of washing one's hands??) In any event, if it is known that a patient is being put in harm's way, that patient's blood is on the hands of those who knew.

Ignoring patients' stated wishes, especially regarding end-of-life decisions. Yes, I know that end-of-life situations can be a real quagmire, with family members disagreeing, patients' wishes unclear, or no instructions left by patients who are now comatose. I'm not talking about that. I'm talking about a perfectly competent patient who executes a perfectly legal advanced directive, with no family opposition, and some physician or nurse or other clinical professional-or, for that matter, an administrative professional-decides to ignore it. This doesn't happen as often as it used to, especially after the case of Terri Schiavo, but it still does happen. The point here is the same as your mother telling you when you asked again for an Oreo: "When I say 'no,' I mean 'no'!" Granted, the situation is more complex if the patient wants continued care when the situation is clinically hopeless, but we have gotten better at dealing with that, and there are guidelines and counseling and other remedies available. The point is that when a competent patient states his or her wishes, those wishes, and not those of the provider, should be paramount. As one commentator said of transplant surgeons who insist on continuing with procedures that are futile because otherwise they would feel guilty (Mickey Mantle's liver transplant comes to mind), the goal of surgery is to help the patient, not to make surgeons feel better.

Active euthanasia. It does not happen often in this country, but it happens, and not always because the euthanizer is psychotic. Sometimes a judgment is made that "the patient would be better off," and a little something is added to the drip. I am not talking about assisted suicide, "slow codes" or do-not-resuscitate orders; I am talking about actively killing a patient. Research has shown that in other countries, such as the Netherlands, where physicians may terminate patients' lives if asked to do so, a significant number of patients die at the hands of their physicians when no such request was made. This one is as clear-cut as they come: It's unethical. It's wrong. And it also happens to be illegal.

Allowing impaired persons to practice. We have made a great deal of progress on this, but we ain't there yet. Furthermore, we tend to focus on clinical professionals-physicians, nurses, aides, pharmacists and others-while conveniently overlooking inebriated CEOs or drug-dependent board members. A drunken anesthesiologist represents direct, grave potential harm to the patient, but a stoned CEO who is promulgating destructive policies is a threat not only to patients, but also to the organization and the community it serves. And boards that allow it or participate in it are just as culpable as the lab tech who likes Demerol for lunch. A colleague of mine told me of a board member who would bring a large bottle of water to meetings, and got progressively combative as the session wore on. It wasn't water; it was vodka. After that, the hospital provided sealed bottled water.

Impaired people can make bad decisions, and other people can and do get hurt as a result, sometimes very badly hurt. I do not think that people with addictions should be treated like criminals; they should be able to obtain help easily and in confidence, and we all hope they will heal and get back to work. But until they have overcome the problem, no matter their power or job description, they should not hold positions of responsibility, clinical or otherwise. The same applies to people who are just incompetent.

Egregious personal inurement. I hardly need dwell on this one, at least for nonprofit providers-high executive pay and lavish board bennies are being investigated by everyone except Sam Spade. Still, running a hospital or nursing home or health system or health plan is a very difficult and demanding job, and proper reward for doing that job well is appropriate. But we have seen, time and again, in the general business sector, CEOs whose companies are in the tank-even some whose firms are facing bankruptcy-who are terminated and then waltz away with millions of dollars in severance packages (usually including lifetime first-dollar health insurance for themselves and their families). Public and policy reaction has been fierce. I am also aware of four health plan executives, all now retired, who left the field with, respectively, $2 billion, $1 billion, $500 million, and $300 million in personal wealth. I don't think you should be able to make that kind of money selling insurance (and denying it to sick people, sometimes retroactively).

I brought this last issue up in a recent lecture, and a colleague who was in the audience came up afterward (for a private discussion, interestingly, not during the question-and-answer period), and said, "I don't mean to defend Mr. Smith [one of these four executives], but he was rewarded by the market, not by policyholders." At which point a man standing next to me exploded, "But the market rewarded him for venal practices that produced the profits he left with!" I agree. This is health care, not hedge funds-except that sometimes it seems that hedge funds are more carefully regulated than profiteering in health care, and, given the lax regulation of hedge funds, that is a sad comment indeed.

Appropriate compensation, properly considered and monitored, is a just reward for good performance; going overboard, however, does not sit well with those who are paying the bills, which is all of us.

Tolerating discrimination based on race, gender or other characteristics. Yes, denying people access to care, or employment, or retention, or promotion, on the basis of their personal characteristics is illegal. It happens anyway, but there are remedies and some handsome judgments have been handed out. But that's the obvious stuff. I'm talking about what I run into: brutish comments about a woman's body, or racist language being used in public situations, or jokes about gays or people who don't speak English.

Sooner or later, everyone has at least a passing encounter with the health care system, as a patient, family member, employee or practitioner, and our system has an ethical responsibility to treat every single one of them with courtesy and respect. I could provide logical reasons for this, such as, do you want to have a workforce in the future? Do you want patients of color, or gay patients, or Muslim patients to use your services, or would you rather go broke? Does your board want to be relevant to its community? Do you want to participate in developing the next generation of health care leaders? But that's all cold, hard logic. The reasons no health care organization should tolerate prejudice is that it's wrong, and people expect more than that from us.

Lying. The CFO was caught red-handed, embezzling money from the organization. The purchasing manager demonstrably was receiving kickbacks. The physician was secretly referring all the privately insured patients to the clinic in which he had a 50 percent interest while sending publicly insured and uninsured patients to the hospital. The pharmacist was sleeping on the job. And what happens when they are confronted? "I didn't do it." "You're harassing me." "This isn't what it looks like." Why does anyone put up with this? Are we graduates of the Barry Bonds School of Denial of the Obvious, or what?

If someone-anyone-from the lowliest employee to the chairman of the board, lies when questioned about a troubling situation, that person should be gone. That's it. I realize that we have all gotten so used to celebrities lying about misbehaviors ranging from steroid use to killing people-and getting away with it-that we all may be a bit desensitized. But those situations are beyond our control; what happens within our own organizations is not.

Stealing. This is another one of those "duh" observations. Generally speaking, if someone is robbing the organization, two things should happen: That person should be dismissed, and the authorities should be notified. Yet we continue to hear of swindles, drug diversions and outright thefts that go unreported. Interestingly, who the thief is often determines what happens: A security guard caught pilfering a Coke in the cafeteria is terminated on the spot; a trustee who lands a sweetheart deal for his wife's food service company remains on the board. "It was an honest mistake." "I didn't know what the ethics rules were." "I really meant to make it right down the line." And off they go with their ill-gotten gains. It makes me sick. More important, it makes the public sick. And more and more of these high-flying thieves are finding that even in this laissez-faire age, they have to pay the piper. One of those billionaire insurance executives was forced to pay back one-third of his stash, which was justice of a sort, even if it was only a slap on the wrist.

Engaging in bribery. One begins to run out of ways to say "you really shouldn't be doing this because it's not only unethical; it's illegal." How many scandals have we seen because Trustee A bribed Legislator B, or Supplier X bribed CEO Z, or Hospital Alpha bribed Regulator Beta? It is necessary to keep the pigs away from the trough. A nonprofit organization is beholden to the community whose resources it stewards; a for-profit organization is beholden to the stockholders who technically own it. Using their money-and it is indeed their money-to cut corners, enrich yourself, fatten the bottom line, pay off past favors or pull a fast one is invariably a bad idea. Health care organizations are under the microscope (forgive the unfortunate metaphor) far too much right now for anyone except a fool to think he or she will get away with this for very long. I should know; I live in Illinois, where three of our governors over the past 50 years have gone to the pokey as a result of bribery-related offenses. My favorite story about this is the tale of the racetrack owner who bribed the governor, then wrote the bribe off on her taxes, explaining that paying off public officials was "a usual and customary way of doing business" in Illinois. Not anymore.

Concealing conflicts of interest. This one is also complicated because no one agrees on what constitutes a conflict of interest. If a trustee insists that a health system keep all its money, interest-free, in accounts in the bank that she owns, that's pretty blatant. Most of the time, it's much more subtle, involving slightly questionable referral arrangements, decisions made in the hope of future benefit, favoring a friend who is married to your nephew's son-in-law, and the like. The best way to deal with any and all of this is complete transparency (another one of those terms that have been making the rounds in recent years). You want a certain company to get a contract? Disclose your relationship with it, no matter how minor. You want to refer patients to this place rather than that place? Disclose your ownership or investment interest, if any. You want a particular consultant or supplier? Do you play golf with those folks? Free and open disclosure accomplishes three things: It demonstrates a commitment to fair play. It reveals any situations from which the person in question should recuse herself. And it shows the community that the organization takes these issues seriously. Or, you can try to cover up insider relationships and sweetheart deals and wait for the state attorney general to contact you. And he will.

Gouging low-income uninsured patients. Talk about a hot-button issue! We are all familiar with this one; heaven knows, I have written and lectured about it often enough. This practice has made hospitals, especially, vulnerable to attacks from all kinds of unsavory characters and organizations, and some savory ones as well.

Now, if some wealthy clown decides he'd rather have a Ferrari than buy health insurance, fine; hit him with full billed charges. But most people are uninsured because they can't afford to buy coverage, and to stick them with the full cost of the ride while people with coverage and their insurers are paying half or less of what the poor uninsured sap is being charged is neither fair nor ethical. And it gives the entire health care system a black eye, which we hardly need at this juncture. Follow the lead of the American Hospital Association, the Catholic Hospital Association and state hospital associations, and adopt policies that give low-income uninsured people a break.

Another thought: Years ago, I was visiting a large urban public hospital, and the CEO took me to the lobby area where patients who had been discharged left the facility. Off to one side was a booth with a volunteer who would accept any kind of donation the patient wanted to make. The CEO explained that when he first came to the hospital, discharged patients who wanted to pay $1 or $2 or $5 were denied that opportunity. He installed the booth so that people who could pay a little would be allowed to do so, if for no other reason than to protect their dignity as human beings. Another hospital I visited once gladly accepted vegetables from a poor farmer who planted a half-acre in its honor.

Making people beg, or depriving them of their last shred of dignity, does not become any of us. Neither does taking them to the cleaners.

Exempting favored individuals from the rules. Another no-brainer, but the one that is perhaps violated the most. Another lesson from Mom: What's good for the goose is good for the gander. One reason Enron began its downward slide to disaster was that the board granted an ethics exemption to an executive so that his wife's travel agency could get an exclusive contract for all the firm's travel bookings, and then other executives wanted exemptions for what they were doing, and so down the road to hell they trotted. If you have rules, they apply to all. If you have policies, they apply to all. If you have penalties, they apply to all.

Many, many years ago, after African-American social activist Angela Davis was acquitted in a murder case with massive political overtones, a cartoon appeared in the Washington Post showing two African-American prison inmates talking in their cell. One says to the other, "Gee, if we were famous black revolutionaries, do you think we would be doing 20 years for stealing hubcaps?" Gee. Favoritism, exemptions and selective enforcement of the rules soil all of us, and, more important, they soil all of health care.

Commitment or Consequences

So do I really think that public and private payers should stop reimbursing organizations whose leaders tolerate or engage in these behaviors? Given the ethical lapses of so many of those payers, that would be a call for base hypocrisy. But I must concede that it was only when financial rewards and penalties appeared on the table that some health care organizations started taking "never events" seriously. Perhaps the best we can hope for is that health care leaders will understand that corruption at the top leads to injured patients, and that tolerating misbehavior at one level leads to tolerating misbehavior at all levels, and sooner or later there will be a dead baby on the boardroom table. This stuff is a lot more slippery than counting sponges or making sure the newborn goes home with the right mother, but the stakes are just as high-and the consequences are just as real.

Addenda from previous columns:

Regarding "Happy Tails, Jake Leg, and the Food and Drug Administration" (H&HN OnLine, Aug. 7, 2007): I am sorry to report that John P. Morgan, M.D., the physician who was the world authority on the 1930 mass poisoning and paralysis of 50,000 low-income Americans, died unexpectedly in New York City on Feb. 15 at the age of 68. He never finished his book on the "Jake leg" tragedy.

Regarding "Adventures in the Skin Trade," (H&HN OnLine, Feb. 5, 2008): Thanks to all of you who sent in your own stories and who were concerned about my health. I am now minus two teeth, but will get new ones eventually. I finally got in to see the orthopedist, and both the X-rays and the MRI were negative, so there is no immediate diagnosis. All in all, an expensive but educational experience.

First published in Hospitals & Health Networks OnLine, April 1, 2008

Emily Friedman 2008

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