Liability threats of non-healing pressure ulcers put providers on the hotseat
Liability threats of non-healing pressure ulcers put providers on the hotseat

When it comes to pressure ulcers, why they develop doesn’t matter much to most patients — or to juries.

What does matter is how these debilitating, disfiguring and potentially deadly wounds are treated, and whether that treatment is given according to rigorous standards and documented diligently.

Even then, with more than 17,000 pressure ulcer-related lawsuits filed each year in the United States, there are plenty of opportunities for medical debate and juror emotion to derail the most defensible cases.

Preventing pressure ulcers is the best case scenario for facilities concerned with both patient welfare and the bottom line. American healthcare providers spend more than $11 billion a year treating them.

Increasingly, facilities also have to defend best practices in a legal arena that’s colored by ugly evidence, accusations of negligence and plain misunderstanding of wound care protocols. 

“People jump to the wrong conclusions,” says attorney Donna Fudge, of Florida-based Fudge & McArthur. “When you see a color photograph of a Stage IV pressure ulcer, it’s almost human nature to think, ‘Wow, what did they do to her?’ But this is not black and white. It’s not a perfect science.”

More troubling, says Indianapolis attorney Norris Cunningham, is that plaintiffs are frequently tying wounds to patient deaths, even in cases where skilled nursing residents are being treated for co-morbidities that make certain wounds unavoidable.

Cunningham heads the litigation practice group at Hall, Render, Killian, Heath & Lyman. He’s seen a shift in the number of cases alleging pain and suffering versus those resulting in death. Where once it stood at 60/40, now 80% of his cases involve allegations of fatal neglect.

“It becomes a lot more specious,” says Cunningham. “But (jurors) are more than willing to leap over causation.”

Adult nurse practitioner Joy Schank, RN, MSN, CWOCN, says wound care is held to a higher standard by many survivors than other specialty treatments. That can be complicated by the fact that not all wound interventions are right for every patient. 

“If there’s something wrong with someone’s heart, a cardiologist might try A, B and C, and if the patient still dies, the family understands,” says Schank, who has served as a defense expert in wound care cases. “A provider taking care of a pressure wound might try A, B, C, D, E, F and G. And now they not only get sued, but they could potentially face criminal charges.”

An ounce of prevention …

The best way to win the battle against pressure ulcers is to prevent as many as possible.

Laura Dahl Popkes, RN, CWOCN, is a clinical support manager for McKesson. Her first, best advice is to have a staff member whose job is to champion wound care initiatives and stay up-to-date on advances in treatment.

“It is really important to embrace certification and push for that — somebody who is a real resource for you,” says Dahl Popkes.

As a member of wound care associations, a specialist is more likely to hear about new breakthroughs and changing recommendations from the National Pressure Ulcer Advisory Panel. (Its clinical practice guidelines are expected to be updated by summer and new support surfaces standards are on the horizon.)

That person also can help develop facility-wide standards such as prevention protocols and formularies that keep the same type of supplies in house consistently.

Consultants such as
McKesson also can warn providers away from treatments that might do more harm than good, such as adhesive dressings with a glue that’s too aggressive for elderly patients susceptible to skin tears.

The same protocol that governs the use of such products also should incorporate guidelines on other treatments and when to document them.

Schank says a policy should be implemented “from the day a patient hits the door.” 

She says facilities might consider treating even those with a low Braden Scale score as if they’re at high risk, supplying wheelchair cushions and support surfaces if the person looks frail.

“Check the boxes in the MDS,” she says.

Then, keep documenting. There may be no better defense.

“Failure to document according to professional standards [medical, as well as nursing] can place a clinician in a very precarious position, as well as the facility or clinic that employs them,” says Mary Madison, RN, RAC-CT, CDP, a long-term care consultant for Briggs Healthcare. “In a lawsuit, a clinician could well suffer the loss of his or professional license.”

Prison in the future?

In a case cited by The American Journal of Forensic Medicine and Pathology, the state of Hawaii prosecuted a nursing home operator for manslaughter after a 79-year-old resident died of an infection allegedly caused by pressure sores.

The pathologists who advise the courts on such cases, notes Schank, are trained to believe all pressure wounds are preventable.

Cunningham says high-quality documentation that demonstrates clinical staff are “caring and confident” is one of three critical factors in court cases. [He supplements proof of appropriate treatment with education on a patient’s pre-existing conditions and experts on etiology and physiology.]

In a skilled nursing setting, says Madison, daily documenting should be a minimum requirement.

But policies that get too specific can be problematic.

Fudge says she’s seen written plans that call on every staff member who offloads a patient to document it. 

Moves to the shower or a walk to therapy often aren’t noted in the official record just because there isn’t time in the day.

“Simply because you didn’t document something doesn’t mean you didn’t treat it,” Cunningham adds. “But to jurors, if you’re not dotting your i’s and crossing your t’s, it’s looks like you fell asleep at the wheel.”

Cunningham also worries about how often pressure wounds are photographed, a routine part of many paper and electronic documentation systems.

He says images become powerful weapons in the hand of a plaintiff’s attorney, the pictures that they leave in a judge or arbitrator’s mind hard to overcome with even the best explanations of how wounds develop.

That doesn’t mean pressure ulcers should be hidden.

Both Cunningham and Fudge say nursing homes need to do a better job of teaching residents and their families about wounds, what the different kinds look like and how a patient’s condition, age and nutrition all contribute to the likelihood of development.

Cunningham once worked a case where a granddaughter bemoaned the development of a pressure ulcer, saying her grandmother “only had Alzheimer’s.”

In its own literature, the Alzheimer’s Association acknowledges that pressure sores are typical among late-stage patients who become bed-ridden or chair bound. 

Having diabetes or vascular disease also increases risk.

“These are people who are just decompensating overall,” Cunningham says. “It’s incomprehensible to me that people want to exclude skin from that failure.”

Passing it along

Many residents bring wounds with them to long-term care.

Don’t expect the hospital to help shoulder the burden.

“The plaintiffs almost never bring in the hospital and almost never name the treating doctor,” says Fudge, who served on the Long Term Care Subcommittee for the Defense Research Institute. “We are standing alone.”

Fudge scored a victory for a nursing home sued after a 92-year-old woman developed a Stage IV pressure ulcer. 

Just prior to her nursing home admission, she’d been in the hospital undergoing surgery, and was never turned or repositioned while in recovery.

Because of her age, the woman’s body took little time to develop a deep tissue injury. The nursing home noted a deep purple bruise at admission, and when it opened, it went straight to the bone.

Those kinds of observations are critical, especially among darker skinned patients who might not show bruises as easily. Jurors and arbitrators tend to favor notes written by doctors, says Schank, so encourage them to get involved in wound care charting. 

Providers also should talk with each family about what happens to skin when an elderly person becomes frail or eats poorly.

They should know that some life-prolonging medical devices — including CPAP machines and oxygen tubing — can add enough pressure to create sores. That’s especially true among patients who can’t self-report pain or won’t shift themselves or equipment as recommended, Dahl Popkes says.

If a wound does develop, tell the family right away. Don’t leave a Stage III on an elderly woman’s heel or coccyx to be discovered by a grandchild on an otherwise happy visit. 

Be sure to document specific verbal responses to notification, Dahl Popkes suggests.

“It’s having that dialogue that, in many respects, keeps our clients from having to call us,” says Cunningham.