UK: Hospitals' MRSA deaths could bring manslaughter charges

Last Wednesday was the first day of the new federal fiscal year, and therefore the day on which HHS's new "non-reimbursement for medical errors" rule went into effect. Under this new rule (blogged here and here and covered in this New York Times story), the Center for Medicare and Medicaid Services will no longer reimburse hospitals for the increased care that a patient needs after an extreme medical error has happened. While infecting a patient with MRSA is not specifically disavowed in the rule, it outlaws reimbursement as of this year for infections associated with vascular catheters and coronary artery bypass graft surgery, and next year (Oct. 1, 2009) for surgical site infections following orthopedic procedures. (Disappointingly, CMS rejected requests to define staph septicemia and nosocomial MRSA infection as "never events.")

Now, however, it seems that the UK government is willing to go much further than our own. According to a story in The Independent (first flagged here by ace flu blogger Crawford Killian), "tough new manslaughter laws" will allow corporations — including healthcare institutions — to be held accountable for deaths in which corporate behavior plays a role:

Maria Eagle, the Justice minister, told a meeting of more than 100 chairs and non-executive directors of NHS trusts that where managers ignore warnings of health risks, prosecutions may follow. She said: "Putting the offence into context, imagine that a patient has died in a hospital infected by MRSA and the issue of corporate manslaughter has been raised. Could the organisation be prosecuted and convicted? The answer is 'possibly'. (Byline: Robert Verkaik, law editor)

Public attitudes in the UK are ripe for this change. In July, there was significant protest after it emerged — via a government report — that 345 patients died of Clostridium difficile infection at three hospitals, after government warnings, with no punishment to the hospitals. In fact, according to The Independent, the chief executive of the trust that operated all three was allowed to resign with $150,000 in foregone pay, and is now suing for additional compensation.

So far, US protests and citizen action over nosocomial MRSA infections have been within individual states (see this recent post on the new Nile's Law in California). But isn't it interesting to see what coordinated national action — granted, in a smaller country — can do.

Not-reimbursing hospitals for MRSA: The reaction

You'll remember that early in the summer we talked about the proposal by the Center for Medicare and Medicaid Services to cease reimbursing hospitals for the additional care of a patient that is required when a hospital gives a patient a nosocomial infection. CMS has been debating whether to include several types of hospital-acquired infection in the 2009 iteration of its "never event" no-reimbursement list. (CMS has not announced its final choices.)

Healthcare's reaction has been, hmmm, not positive. At The New Health Dialogue, Joanne Kenen captures the reactions, many of which run along the lines of "infections are inevitable because patients are so sick." But she's also found a marvelous (and appalling?) argument that goes, more or less, "Preventing infections will be more costly, not less, because hospitals will introduce additional procedures to protect themselves."

This recalls the intriguing and dismaying suggestion in JAMA a few weeks ago that "search and destroy" active surveillance is driven less by wanting to halt in-hospital transmission and more by hospitals wanting to build a case that patients brought the infection with them.

Hospital gives patient MRSA. Should Medicare reimburse?

You have until June 13th to tell the government what you think. Details of how to comment at the end of this post because they are complicated.

Here's the back-story: Until recently, hospitals were reimbursed by the Center for Medicare and Medicaid Services (part of the US Department of Health and Human Services) whenever they provided care to Medicare or Medicaid patients, even if that care included a mistake, error or hospital-acquired infection. Thankfully, that is beginning to change. Last December, CMS proposed a rule change. In the agency's language:

Beginning October 1, 2008, Medicare will no longer pay hospitals at a higher rate for the increased costs of care that result when a patient is harmed by one of several conditions they didn’t have when they were first admitted to the hospital and that have been determined to be reasonably preventable by following generally accepted guidelines. (Quoted from this press release.)

In other words: Hospitals, you break it, you bought it.

These are the conditions for which, as of Oct. 1, 2008 (the first day of federal fiscal year 2009), Medicare will not reimburse:

• Object inadvertently left in after surgery
• Air embolism
• Blood incompatibility
• Catheter associated urinary tract infection
• Pressure ulcer (decubitus ulcer)
• Vascular catheter associated infection
• Surgical site infection - Mediastinitis (infection in the chest) after coronary artery bypass graft surgery
• Certain types of falls and trauma.

Note: MRSA is not on that list. But: At the same time, CMS proposed a second set of error-related conditions for which it will consider not-reimbursing, based on public comment. Some of those conditions are MRSA-related. The conditions are:

• Surgical site infections following certain elective procedures.
• Legionnaires’ disease (a type of pneumonia caused by a specific bacterium)
• Extreme blood sugar derangement
• Iatrogenic pneumothorax (collapse of the lung)
• Delirium
• Ventilator-associated pneumonia
• Deep vein thrombosis/Pulmonary Embolism (formation/movement of a blood clot)
• Staphylococcus aureus septicemia (bloodstream infection)
• Clostridium difficile associated disease (a bacterium that causes severe diarrhea and more serious intestinal conditions such as colitis)

CMS will decide whether or not to include any or all of those additional events by Aug. 1. The non-reimbursement would start at a later date that the first list.

This a complex topic and there is a long paper trail attached to it. Fact sheets are here. Definitions of the conditions, as accepted by CMS and the CDC, are here. The records of the Dec. 17. 2007 hearing in which this was discussed, including complete transcripts, is here.

Directions for how to comment electronically and by mail and hand-delivery (faxes are not accepted) are contained in this long Federal Register entry. Here is how to do it electronically:

• Go to http://www.regulations.gov
• Under "Comment or Submission," enter this file-code: CMS–1390–P
• Click on "Send a comment or submission" in the left-middle of the page.
• Fill out the form that comes up (you may have to page-down to see the full form).