Defending nursing homes cited with F-Tag 314
As many long-term care providers know, F-Tag 314 is a federal regulation that governs pressure injuries (previously called “pressure sores or pressure ulcers”) developed in nursing homes.
This regulation mandates that, based on the comprehensive assessment of a resident, the facility must ensure that the resident who enters without a pressure sore does not develop one, unless the individual's clinical condition demonstrates that the pressure injury is unavoidable. In order to meet the definition of an “unavoidable” pressure injury, the nursing home must:
- Evaluate risk factors
- Implement interventions (i.e. turning and repositioning, pressure relieving devices, and nutritional supplements, etc.)
- Monitor the impact of those interventions
- Revise those interventions, where appropriate.
We call this “the 4-prong test.”
With violations of F-Tag 314 forming the basis of litigation against long-term care facilities, it is important to have an understanding of the key defense themes used to combat such allegations. The following shall serve as examples of how our law firm recently defended two nursing homes where residents developed in-house acquired, Stage IV pressure injuries. In both cases, we utilized FTag 314's “4-prong test,” as well as its definition of “unavoidable” pressure injuries, in order to obtain defense awards in both cases.
Arguing unavoidability due to underlying medical conditions
In a jury trial, a nursing home, University Village, was sued by a resident's estate after the resident acquired a Stage IV sacral/coccyx pressure ulcer in the final three months of a 12-year residency.
The estate alleged that University Village failed to implement appropriate interventions after re-admission from a hospital stay, and failed to revise any interventions after the resident developed the pressure injury, in violation of F-Tag 314. The plaintiff also alleged that the caregivers at University Village failed to prevent the development, and worsening, of the resident's pressure injury. Lastly, the Plaintiff alleged that the caregivers failed to properly assess and treat the resident for pain allegedly associated with the pressure injury. In support of these allegations, the plaintiff used the testimony of a nursing home standard-of-care expert, a physician expert, and presented a graphic photograph of the Stage IV ulcer to the jury.
Throughout the trial, we argued that the nursing home met F-Tag 314 by: (1) evaluating the resident's risk factors for additional pressure sores via Braden Scale assessment, care planning for skin impairment, etc., (2) implementing interventions for the prevention of pressure sores, (3) monitoring the impact of those interventions by notifying physicians of changes in the wound and obtaining new wound treatment orders, such as a wound vac and an infectious disease consult, and (4) revising those interventions. We focused the jury's attention on the resident's 10 most recent hospitalizations leading up to the development of his skin wound, as well as his 20 underlying comorbidities, including a history of cerebrovascular accident, stercoral ulcer, dementia, paralysis, C. difficile, and GERD which contributed to the development and eventual worsening of the sacral/coccyx ulcer.
It was important for us to stress to the jury that proper interventions were put into place when the resident was re-admitted. However, despite these interventions, the resident still experienced an unavoidable friction blister that progressed to a pressure injury and eventually became a Stage IV with suspected osteomyelitis. To support our defense of the nursing home, we also brought in a wound care expert to testify that the healing of the resident's left and right buttocks' skin wounds, adjacent to the coccyx area, was evidence that he was being properly off-loaded in that area.
One of the major hurdles during litigation was to defeat the argument made by the plaintiff that the facility failed to monitor the resident's pressure injury due to a lack of wound tracking documentation, and that the facility failed to turn and reposition the resident on a regular basis, due to the fact that there was no charting of turning him every two hours.
We asked the jury to not be distracted by the plaintiff's “cherry-picked” records, but rather consider the resident's chart as a whole, in order to get a true and accurate understanding of the interventions in place, such as wound monitoring, pain management and repositioning. For example, although each nurse's note did not specifically state that the resident had been turned every two hours, the ADL Flow Sheets supported that it had been done where “bed mobility” had been documented on a shift by shift basis by the CNAs.
Arguing unavoidability due to resident refusals and underlying medical conditions
In a second case, during a confidential arbitration, a nursing home was sued by an estate after a resident developed a Stage IV left buttock pressure injury, which persisted in excess of 400 days and required dozens of debridements, up until the resident's date of death.
Using F-Tag 314's requirement for the implementation of interventions, we explained to the panel that the resident had multiple behavioral issues and refusals of care that not only caused the wound to develop, but prevented the caregivers from completing these interventions. For example, the resident's repeated removals of her wound dressings, refusals to comply with turning and repositioning, and her continued scratching of the wound with long fingernails that she refused to let her caregivers trim, caused the wound to develop and allowed it to continually deteriorate.
We also educated the panel on the resident's right to refuse and explained that our caregivers were prohibited from physically or chemically restraining the resident to prevent such behavior. Thus, the caregivers met the resident's needs to the extent that the resident would allow, put appropriate interventions in place in accordance, and recorded their efforts to redirect the resident's non-compliant behavior.
Furthermore, through the testimony of its wound care expert, we were able to demonstrate to the panel that the resident had numerous risk factors/conditions that resulted in the pressure injury being unavoidable, including urinary incontinence, fecal incontinence, impaired/decreased mobility, co-morbid conditions, medications that affect wound healing, cognitive impairment, poor nutrition, malnutrition, failure to thrive and a hydration deficit. Most important in this list was the refusal of care and treatment.
With these recent decisions, we have discovered that there is success in demonstrating to a jury or arbitration panel how a pressure injury can be unavoidable as defined under F-Tag 314. We believe applying this 4-prong test gives the fact-finder an easy step-by-step road to use in reaching its decision.
Donna J. Fudge is a partner at Fudge & McArthur, P.A., specializing in nursing home and medical malpractice defense.