Pressure Wounds in Nursing Homes and Hospitals

When are nursing homes and hospitals liable for the development of pressure injuries?

By Jeffrey J. Downey, Attorney

Background

Nursing homes (a/k/a skilled nursing facilities) tend to be the weak link in our healthcare system. Lack of adequate staffing and training can have serious and sometimes lethal consequences for the elderly who enter nursing homes at risk for pressure injuries.

An article by the International Journal of Nursing Studies (Vol 28, Dec. 2023, 104605) explained that pressure injuries (a/k/a bed sores) are a fundamental safety concern of elders living in skilled nursing facilities. In reviewing some 47 full text studies, the study noted that the pooled incidence of pressure injuries was 14%. The most common location for pressure wounds were the heels (34.1%), the sacrum (27.2%) and the foot (18.4%).

In the last decade the Federal Government has done little to address the declining conditions of our long-term care system. In 2008 Medicare put in place the Hospital Acquired Conditions (HACs) Initiative, a program designed to deny incremental payment for 8 complications also known as never events. These eight complications were identified by DHHS as high cost, high volume events that could reasonably be prevented through application of evidence-based guidelines. Injuries from falls, stage III or IV hospital acquired pressure ulcers (HAPUs), catheter-associated UTIs, and central line-associated bloodstream infections were some of the adverse outcomes covered by this program. Under the HAC initiative, healthcare providers could no longer justify a higher-level Medicare severity diagnosis to recover costs incurred in caring for patients who developed one of the eight diagnosis.

Research shows that most pressure wounds are avoidable. Studies reflect that approximately 95% of all pressure wounds are avoidable with early risk assessment and the provision of appropriate treatments.[1] Hospitals and nursing homes can be held legally liable for allowing patients to develop pressure wounds unless those wounds were clinically unavoidable. These cases often boil down to a battle of the expert as to whether a pressure wound was “clinically unavoidable.”

This article seeks to explain the meaning of clinical unavoidability and provide the reader with some insight as to which pressure wounds are likely clinically avoidable, thus rendering the facility legally liable for their development.

Clinical Unavoidability – The Definition

On December 19, 1989 Omnibus Budget Reconciliation Act (Public Law 101-239)(OBRA 1987) established the Agency for Health Care Policy and Research (AHCPR). The AHCPR Publication number 92-0047, Pressure Ulcers in Adults: Prediction and Prevention, Clinical Practice Guideline Number 3, May 1992 provides relevant definitions for pressure sores/decubitus ulcerations

Although designed to clarify OBRA guidelines for care and prevention of pressure sores in the long-term care setting, the principles of prevention and treatment for pressure sores discussed under F-tag 314 also apply to the hospital setting.

Interpretive F-tag 314 language for the above regulation (42 CFR 483.25 (c)) clarifies the definition of avoidable and unavoidable pressure ulcers. Avoidable means “that the resident developed a pressure ulcer and that the facility did not do one or more of the following: evaluate the resident’s clinical condition and pressure ulcer risk factors; define and implement interventions that are consistent with resident needs, resident goals, and recognized standards of practice; monitor and evaluate the impact of the interventions; or revise the interventions as appropriate.” Conversely, unavoidable means “that the resident developed a pressure ulcer even though the facility had evaluated the resident’s clinical condition and pressure ulcer risk factors; defined and implemented interventions that are consistent with resident needs, goals, and recognized standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate.”

Factors Impacting Clinical Unavoidability and legal liability

In almost all pressure sore malpractice cases the defense will argue that the patient was so sick that there was nothing that could be done to prevent the development of a pressure wound. The defense may also blame the patient for not cooperating with his plan of care or argue that the patient’s death was unrelated to the pressure injury (the causation defense). Typically, experts will testify to their opinions regarding whether the pressure wound was clinically unavoidable, with the defense expert explaining that the wound was unavoidable and the Plaintiff’s expert testifying that it should have been avoided.

The following factors will influence the jury’s decision as to whether the pressure wound was in fact clinically unavoidable.

A. Whether proper, aggressive preventive care was implemented (and documented)

The definition of clinical unavoidability anticipates that the pressure wound developed despite proper preventive care as required by standards of practice, including pressure off loading, which typically involves a specialty pressure reducing mattress and turning and repositioning off pressure areas at least every two hours while in bed and every hour while sitting in a chair. Proper nutrition, hygiene, toileting and moisture control are also essential elements of preventing pressure wounds. A facility simply cannot let a patient lie in bed for extended periods of time in a wet diaper and claim that the pressure wound was unavoidable.

The first step in disproving clinical unavoidability is to show that the facility did not provide the required care under the applicable standard of care. The “standard of care” is a legal term of art that means the standard employed by a reasonably prudent healthcare provider under the same or similar circumstances. When it comes to liability, standards of care in nursing homes are largely set by federal regulations and the interpretive guidelines which provide specific recommendations for preventive care and treatment. Of course, don’t be surprised if the defense argues that the federal guidelines are simply recommended guidelines that do not mandate specific conduct.

Attorneys will look at the patient chart and records to determine if proper care was provided. Records to be considered include risk assessment (the Braden scale) the patient care plan, intake and output records, turning and repositioning records, nutritional records, wound assessments, treatment records and nurse aid documentation on toileting, feeding and repositioning. With the advent of electronic charting, some facilities rely on documentation systems that encourage staff to “check the box” for turning even when they may not have actually turned the patient. In such cases it’s important to consider family observations as to whether the staff was actually turning the patient every two hours, which is also the time period that an incontinent patient should be checked for toileting.

Attorneys pursuing these cases should also look at the facility’s audit trail, which is the chart within the chart that has data showing when all entries were made, who made them and from what location. The audit trail will sometimes show that the nursing staff checked the box for turning at the beginning of each shift. This is a type of fraudulent charting that can help prove that the patient was not properly turned and repositioned, and as such, the foundational requirement of clinical unavoidability (that the patient got proper care) cannot be established.

Often, lack of adequate staffing or poor staff training can contribute to failures in care leading to a pressure wound. Attorneys who handle pressure sore cases often look to staff schedules and training records to explore that issue.

B. The Patient’s Medical Condition Upon Admission

Upon admission all patients should be assessed for their risk factors for developing pressure wounds. If a patient enters a nursing home without a pressure wound there is a high probability that the patient, unless he is terminally ill, is not suffering from a condition that makes a sacral pressure wound unavoidable.

Patients who have multiple comorbidities that impact their ability to be moved, i.e. severe hemodynamic instability, or who refuse to be repositioned, may also be characterized as suffering from a condition that makes the pressure wound’s development unavoidable. However, facilities are required to evaluate and assess a patient’s mental condition when they refuse care that is necessary to keep them healthy and come up with a plan to change their mind. Patients with dementia may refuse turning without understanding the impact that such refusals will have on their medical condition. Nurses need to be trained on how to deal with such patients, as most patients can be coaxed into cooperating.

Some patients who have significant blood flow blockage due to atherosclerosis may be unable to prevent pressure ulcers on their heels. However, most patients with atherosclerosis should be able to avoid pressure wounds to their sacrum because of the abundant blood flow available to that area. Patients lying down on their backs in bed are often at risk for sacral pressure wounds as the sacrum is a major pressure area that is often the first to break down.

Facilities are also required to assess the patient’s nutritional status. Poor nutrition or malnutrition can increase the risk of developing pressure wounds, but poor nutrition does not cause the pressure wound. If the patient had normal protein levels upon admission or during his stay, that is a strong indicator that he had adequate protein stores to prevent and/or heal a pressure wound.

If the pressure wound shows healing during the patient’s residency or heals after discharge that is compelling evidence that the wound was clinically avoidable in the first place. Generally, it’s harder to heal a pressure wound that has developed than to prevent it in the first place. That is especially true when the pressure wound is open to potential infectious organisms. Open wounds sometimes become infected, which can make it more difficult to heal the wound, especially where that infection spreads to the bone (osteomyelitis).

C. The physical appearance of the wound

Much information can be determined by the physical appearance of a pressure wound. If the wound bed is red with granulating tissue, that is evidence that the wound has sufficient blood flow to heal. Granulation is the process where the skin generates new connective tissue and tiny blood vessels (capillaries) that form on the surface of the wound as it heals.

When to contact an attorney

If you or a family member developed bedsores from a nursing home or assisted living, contact an attorney early in the process to protect your rights. You may also need to opt out of a mandatory arbitration provision, which in Virginia must be done within 60 days of the injury, or in a wrongful death case, 60 days after the appointment of an administrator.

Contact the Law Office of Jeffrey J. Downey for a free consultation at 703-564-7318. Attorney Downey has over 35 years of experience handling malpractice claims. The firm handles cases in Virginia, Maryland and Washington D.C.

Or send an email to Jdowney@jeffdowney.com

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Contact Information:

The Law Office of Jeffrey J. Downey, P.C.

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McLean, VA 22102

Telephone: 703-564-7318

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Website: https://www.jeffdowney.com/ Email: Jdowney@jeffdowney.com

[1] Pressure Ulcers in the Surgical Patient, Hallyard knowledge Network https://www.halyardhealth.com/media/1513/c14222-clinical-issue-one-pressure-ulcers.pdf