By Jeffrey J. Downey, Esq
Patients in hospitals, nursing homes and even assisted living facilities can develop pressure wounds if they are immobile or have other risk factors. Most pressure wounds are avoidable with proper care and their development often results in legal liability for the facility. This article discusses the common issues that arise with pressure sore (also known as bed sore cases) and looks at various factors that determine the potential value or viability of these cases.
The author, Jeffrey J. Downey, has extensive experience handling pressure wound and other types of elder neglect cases. He has been practicing law for over 37 years and is licensed to practice in Virginia, Maryland and Washington D.C. If you have a pressure wound case, call 703-564-7318 or send an email for a free consultation. All cases have time limits for pursuing a claim, so don’t delay. Protect your rights and the rights of your loved one.
Factors that Determine Whether a Facility was Negligent in Causing a Pressure wound or bed sore.
Pressure wound cases can be time consuming, costly and difficult to prosecute. Attorneys handling these cases will screen them carefully. To make a proper determination one must typically review the complete nursing home or hospital chart and relevant treatment records. Photos and family observations are also important to consider.
Pressure wounds are wounds that develop because of unrelieved pressure on bony prominences of the body, like the sacrum, hips, elbow or heels. It is estimated that over 2.5 million patients develop pressure wounds each year that complicate their treatment and sometime cause their death. Facility acquired pressure wounds in hospitals can be as high as 15 %, and the development of such wounds can lead to a significantly longer hospital stay or discharge to a wound clinic.
The below factors are important considerations in determining whether a particular case is viable.
- The extent of the pressure wound and whether it advanced to stage III or IV at the same facility.
Many attorneys will not consider taking on a pressure wound case unless it is a stage III or IV wound. Also, pressure wounds on heels (without sacral pressure wound involvement) can sometimes be related to peripheral vascular disease.
It’s important to understand that some facilities may under-stage the wound to protect themselves. It’s best to rely upon photographic evidence and factual descriptions that appear in the record that include measurements. A pressure wound with depth will generally be denoted by three dimensions, length, width and depth, with depth always representing the last figure.
Another consideration is whether the wound was infected. Even a stage II wound can become infected and that infection can advance to sepsis. Common signs of infection include foul odor, fever, elevated WBC, pus/drainage, redness around the wound, osteomyelitis (bone infection), increased pain, warmth and/or swelling.
A wound culture is the definitive test that will identify the infectious microorganism. Typically, only a hospital will undertake a wound culture, unless the patient is referred to a wound clinic. Aerobic bacteria are the most common pathogens expected in a wound, which can thrive on the rich oxygen tissue. Common organisms include staph (MRSA), pseudomonas aeruginosa (gram negative bacterium), proteus mirabilis, e-coli, enterococcus, coagulase-negative staph.
Sometimes a pressure wound starts at the hospital and advances at another facility. Such cases can present challenges as the defense will typically argue that the pressure wound at the hospital was a deep tissue wound in development. In such situations, it’s wise to sue both facilities, which can double the costs of nursing experts in your case.
- The Medical condition of the patient at the time the wound develops.
Most pressure wound cases boil down to a battle of the experts on clinically unavoidability.
- Definition of Clinically Unavoidable
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.
Previously Interpretive F-tag 314 (based on 42 CFR 483.25 (c)) clarified the definition of avoidable and unavoidable pressure ulcers. In 2017, CMS replaced it with F-tag 686. F-tag 686 still adopts the basic concept of clinically unavoidability but also puts a greater emphasis on documentation showing that the SNF is engaging in ongoing preventive care, which includes documenting education, updating the care plan and evaluating the effectiveness of interventions in place. Surveyor’s guidance also requires family interviews, reviewing facility documentation and consideration of the SNF’s overall process for skin integrity.
F-tag 686 still mandates that residents who enter a facility without a pressure wound not develop them unless their clinical condition makes them unavoidable. Consistent with the former F-tag 314, the patients must still receive care, consistent with professional standards, to prevent pressure wounds from developing. Unavoidable means that 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.
In summary, before a nursing facility can argue clinical unavoidability, it must show that they assessed, care planned and provided the necessary pressure offloading as required by the standard of care.
In reviewing the record, give thought to the following considerations:
- Is it clearly a pressure wound as opposed to a skin tear or ischemic ulcer?
- Was the client suffering from a terminal condition or was he/she recently placed in hospice?
- What was the nutritional status of the patient as revealed by albumin and total protein scores, which can also impact healing?
- Was the client described as “failing to thrive” – a typical label (not an actual diagnosis) relied upon by defense experts to claim the patient was circling the drain or ready to die?
- Did the staff document all doctor’s orders regarding pressure wound prevention and wound care and memorialize those orders in treatment records?
- Did the patient refuse care in terms of turning and repositioning. If the patient refused care the facility must provide education explaining the risks that such failure to cooperate will pose to the patient?
- Did the patient develop a deep tissue wound before the wound opened up. The defense typically argues that where the pressure wound develops from the inside first (like a purple bruise), it often cannot be seen until it’s too late?
- Did the facility document healing or improvement during the patient’s stay? If they did, that is evidence that the wound could have been prevented in the first place.
- Did the facility assess and treat the pressure wound at Stage I or Stage II, before it evolved into a serious wound?
- Did the wound bed show healthy red or granulating tissue. A healthy wound bed would be red or show pink tissue, revealing the presence of blood flow? Granulating tissue will appear moist, bumpy and granular, sometimes compared to cobblestones or ground beef. A healthy wound bed may be moist but does not have significant drainage.
- Did the facility allow the wound bed to become infected and if so, did they put infection control procedures in place?
- Did the family or patient complain of failures in hygiene and toileting, which contribute to moisture build-up, increasing the risk of the wound developing as well as infection?
- The state of the nursing home chart
Before a defense expert can argue that a wound was clinically unavoidable there must be evidence that the facility met the standard of care in providing preventive measures, but the wound developed despite good care. In short, the facility can’t let the patient lie on her back the entire shift and claim the sacral wound was unavoidable. Attorneys should consider these factors in assessing a case:
- Did the staff timely identify the wound at stage I, and put in place a care plan that involved turning and repositioning?
- Did the staff evaluate risk factors for skin breakdown upon admission. Such assessment may take the form of a Braden scale rating. Also review the MDS and Resident Assessment Instrument (RAI, formerly the RAP) to see how the wound was rated. Focus on section M, skin condition, which should address risk, presence, appearance and changes in any existing wounds?
- Did the facility put in place a nursing care plan to guide the staff in preventing further development and worsening of the wound? Was that care plan changed or updated once the wound progressed? Was there a referral to a wound service or wound doctor when the wound advanced to stage III or IV?
- Did the facility have a turning and repositioning schedule? Experts differ on the extent to which such care needs to be documented, but most SNFs will institute some type of turning schedule that is signed off by either the nurses or nurse aides. Sometimes those turning schedules will have significant gaps that allow Plaintiff to argue that the care was not delivered. With the advent of electronic records and systems like PointClickCare, staff are prompted to fill in all the blanks – and may click on care that was never administered. In such situations it’s important to obtain the audit trail to see when such care was actually documented. If a nurse documents an entire shift of turning every two hours at the start of her shift, that is a form of fraudulent documentation that can be challenged. Always compare the turning chart to facility discharge and hospital admission records so see if the facility is documenting care when the patient is not in the facility.
- Did the facility evaluate the patient’s nutrition and protein levels to make sure the patient was getting the nutrition needed to prevent and/or heal existing wounds? Evaluate the patient’s weight loss, protein levels and any conditions that could make a pressure wound unavoidable.
- Do the nursing notes regularly chart the progress of the wound, including relevant assessments of appearance, dimensions (width, length, depth) changes and signs of infection? Has any healthcare provider commented that the wound is unavoidable or not likely to heal?
- Did the facility provide a specialized mattress or air-fluidized bed such as a Clinitron bed? There is a huge difference between an air mattress overlay and a Clinitron bed, as the latter automatically inflates to redistribute pressure to the patient. However, since Medicare will not pay for a Clinitron bed until the wound reaches stages III or IV, defense experts will argue that the standard of care does not require a Clinitron until the wound has progressed to stage III or IV.
D The family and helpful evidence
Juries, especially in a wrongful death case, will understand that any money award is going to the family. It’s very important to have a family that will present well to a jury.
The best family witnesses are those who were actively engaged in the care of the resident, complained about care problems and documented or photographed the neglect. Attorneys should always meet with the family either in person or through video at the beginning of the case and undertake an extensive interview.
It’s also important to evaluate the family’s expectations early on in the process. In that conversation you should explain the challenges and malpractice caps in Virginia and Maryland. It’s also important to understand that Medicare and Medicaid will have a lien, and if the patient is still alive, consideration must be given as to whether a verdict will result in the loss of Medicaid coverage.
In a wrongful death case consideration should also be given to whether the statutory beneficiaries get along and all support the idea of suing the facility.
- Damages
Since your verdict or settlement will be based on your claimed damages, you should assess that issue early on. Remember, in a pressure wound case in Virginia where the patient dies, you can obtain damages on a survivorship count (pain and suffering) or wrongful death where it can be linked to the wound, but not both. Since the defense will never agree to wrongful death causation, this often becomes an issue for the jury to resolve.
Factors to consider in evaluating damages:
- Photos of the pressure wound can often impact a jury.
- Age and underlying medical condition of the Plaintiff before the wound developed.
- Whether the family members make sympathetic and convincing witnesses.
- Amount of medical bills incurred. Under the collateral source rule a Plaintiff can claim the full amount of the bill, as opposed to the fraction of the bill paid by Medicare or third-party insurance. Write to Medicare early on to flush out that lien.
- The extent to which any lien obligation will reduce any recovery or render the patient ineligible for Medicaid.
- Witness testimony explaining the pain and suffering experienced by the patient as well as other aggravators, i.e., being ignored and left in bed without timely toileting.
- The survey history of the facility and whether the family members or other witnesses can confirm lack of proper staffing.
- Documented complaints of pain and use of pain medications.
- Whether the patient had a DNR before he/she developed the wound. Plaintiff can always seek to exclude a DNR since it is really not relevant to the standard of care or damages.
- Length of time that the wound existed and whether it healed. If it healed, you could argue that shows the wound was avoidable in the first place – but it also cuts off your damages.
- Helpful treating physicians or health care providers who treated the wound and are willing to testify. Non-retained experts can carry more weight before a jury than a retained expert.
- Miscellaneous Considerations
- The cost of the case versus the anticipated recovery. If the patient has a survivorship case involving a Stage III wound, two facilities (i.e. hospital and a nursing home), and the wound healed, the case may not be economically viable.
- The jurisdiction can sometimes be a factor to considered in case selection.
- Whether the facility has adequate insurance and has not filed for bankruptcy, ie Consulate Health Care.
- Whether there are aggravating facts (cover up or fraudulent charting) that will allow me to allege punitive damages and get into the facility’s financial records.
- The Department of Health Survey record may shed light on prior issues with the facility and will arguably be admissible in a punitive damages case. See, Crouse v. Medical Facilities of America, XLVIII, 86 Va. Cir. 168 (Roanoke 2013).
- 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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