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Summer 2008

Featured Articles

CMS Proposes Additions to
List of Hospital Aquired
Conditions or “Never Events”

By Sammi L. Renken

"Never Events" are conditions that have been found by the Centers for Medicare & Medicaid Services (CMS) and/or the National Quality Forum (NQF) to be preventable errors that are hospital acquired. In other words, these conditions are not present at the time of admission and should not occur but for an error by the hospital staff. On April 14, 2008, the Centers for Medicare & Medicaid Services (CMS) announced a proposed rule that would update payment policies and rates beginning with discharges on or after October 1, 2008. CMS has also recently proposed selecting nine additional categories of hospital acquired conditions. Section 5001( c ) of the Deficit Reduction Act of 2005 required the Secretary of the Department of Health and Human Services to select at least two conditions that are:

(1) high cost, high volume, or both
(2) identified through ICD-9-CM coding as a
complicating condition that when present as a secondary diagnosis at discharge results in payment at a higher MS-DRG;
(3) and, that are reasonably preventable through application of evidence-based guidelines.
(CMS Medicare Fact Sheet – April 14, 2008).

For the full article click here.

Current Trends in the Utility of
Binding Arbitration

By Bradley D. Price

Nursing homes and other managed-care facilities are dealing with an all-too-familiar challenge: the allocation of resources between caring for their patients and maintaining a reserve for potential future litigation. Recent legal developments, however, may help these entities confront this challenge. Binding arbitration clauses are becoming an increasingly important component of nursing-home policies because, if enforced, these clauses allow these facilities to limit their liability exposure, thereby freeing up money and resources to better care for their patients. Recent case law suggests that there is a trend, at least among federal courts, to enforce these binding arbitration clauses.

For the full article click here.

10 Years Later, Section
2-622, 90 Day Extension
Rule Invalidated &
Defendants Stripped of a Valuable Defense

By Matthew L. Johnson &
Erin Blake

A recent Illinois Supreme Court decision invalidated a provision in Section 2-622 (a)(2) of the Code of Civil Procedure established by the Civil Justice Reform Amendments of 1995. Section 2-622 (a)(2) stated that the plaintiff was precluded from obtaining a 90 day extension to file a certificate of merit, if the plaintiff previously voluntarily dismissed the same or substantially the same cause of action. In the 1997 case of Best v. Taylor Machine Works, the Civil Justice Reform Amendments were invalidated because the core provisions were found substantively unconstitutional; however, the Court held that the General Assembly was free to reenact whatever provisions it deemed appropriate. In May 1998, Public Act 90-579 was passed adding language to Section 2-622(a)(1) including naprapaths to the list of covered professionals, as well as preserving the original language of the 1995 Amendments providing the defense with an action for dismissal if the plaintiff failed to attach a certificate of merit to a refiled complaint.

For the full article click here.


Welcome to the summer 2008 issue of Johnson & Bell's Healthcare Law Alert, a periodic electronic newsletter focusing on recent developments and trends in healthcare law affecting many areas of the medical industry.  You will also find it to be a valuable resource to inform you of recent court rulings and hot topic issues before federal and state legislatures.

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We also publish periodic newsletters on business litigation, employment law, municipal law, product liability, and insurance coverage issues.  And, our firm e-newsletter InSight affords you an opportunity to learn a bit more about the firm, our attorneys, and the industries to which we offer legal counsel.  If you do not already receive one of these publications but wish to do so, please click here.

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Upcoming Seminar

"Never Events" Seminar -
Fall 2008

“Never Events” are conditions that have been found by the Centers for Medicare & Medicaid Services (CMS) to be preventable errors that are hospital acquired. CMS recently proposed an additional nine categories of hospital acquired conditions. Do you know what these nine additional categories are and how they could affect you and your patients? Johnson & Bell, Ltd. will be hosting a seminar on September 30, 2008, to discuss the proposed “Never Events” and the impact of these new regulations. If you are interested in attending the seminar, please send an email to or call Kathy Starbuck at


Law Alert Update

Admissibility of Medical Bills – Amount Paid No Longer Admissible
By Sammi L. Renken

The Illinois Supreme Court recently reviewed whether the Trial Court erred in reducing the jury’s award of medical expenses to the amount actually paid by Medicaid and Medicare. This issue was previously addressed but the Court states was not resolved in Arthur v. Catour, 216 Ill.2d 72, 833 N.E.2d 847 (2005). The trial court, over defendant’s objection, allowed plaintiff to submit the total amount billed by Medicare and Medicaid. The jury then awarded the full amount of medical bills. Post-verdict, the trial court granted defendant’s motion to reduce plaintiff’s medical expenses to the amount actually paid by Medicare and Medicaid. The plaintiff then appealed and argued that the Trial Court’s order violated the collateral source rule and was contrary to the decision in Arthur v. Catour.

For the full article click here.



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