Nursing care centers, rehab centers, and hospitals are easy targets for litigation where patients develop pressure ulcers while under the facility’s care. This is true despite the fact that such patients often have multiple comorbidities that put them at risk for impaired skin integrity.
Although the defense may view the ulcer as “unavoidable” based on the patient’s pre-existing condition, a savvy plaintiff’s attorney may argue that the patient was at an increased risk for developing a wound and, despite the facility’s knowledge of this, was not adequately cared for at the facility.
Lawsuits Trigger Big Numbers
Lawsuits against skilled nursing and rehabilitation facilities seek damages for compensatory loss such as pain and suffering, increased cost of medical treatment, and wage loss. They may also seek punitive damages, which generally are awarded only for willful conduct that is deemed outrageous or egregious.
Some of the more significant verdicts in pressure ulcer cases include:
- 2015: In the Estate of Cote case, an Arizona jury awarded the estate of an 86-year-old woman $16.7 million in punitive damages, and $2.5 million in compensatory damages, against the defendant skilled nursing center. The estate alleged the facility consciously disregarded procedures designed to prevent pressure ulcers and intentionally falsified medical records to cover it up.
The case was brought for wrongful death and elder abuse, alleging development of a pressure ulcer that ultimately became infected with methicillin-resistant Staphylococcus aureus, overmedication with pain medications, malnutrition, and multiple falls. Notably, the estate argued the skilled nursing center was on notice of problems because inspectors in 2011 found that sufficient steps were not in place to prevent bed sores. Following trial, a settlement for an undisclosed amount was reached.
- 2011: A New York jury awarded $5.4 million to a 58- year-old man in his lawsuit against the defendant hospital. The man developed a Stage IV pressure ulcer on his hip four days after admission to the hospital.
The man, diagnosed with obesity, hypertension, and in need of kidney dialysis, sustained additional pressure ulcers, including on the bilateral buttocks, had related infections, and was permanently confined to a wheelchair.
Allegations included inadequate treatment and improper pressure-relieving surfaces. The verdict breakdown was $2.9 million for pain and suffering, $162,000 for future lost earnings (plaintiff was a kitchen designer), and $55,000 for loss of services to his spouse.
- 2015: A Missouri jury entered a verdict against a medical center and in favor of a 58 year old, awarding $883,000 for development of a Stage IV pressure ulcer on the coccyx following surgery. Allegations included failure to turn and reposition, failure to prevent the wound, and inadequate treatment. There was no award for lost wages.
- 2015: An Arizona jury awarded the estate of a 63 year old with paraplegia $6.5 million (including $3.5 million in punitive damages) against a hospital where the man developed a pressure ulcer in his sacrum that progressed into Stage III, suffered malnutrition, and lost 45 pounds. The estate argued the pressure ulcer, which eventually became infected, placed him in an irreversible state of deterioration, even though the cause of death was complications of paraplegia. Punitive damages were awarded under the Arizona Adult Protective Services Act. The case is currently under appeal.
- 2012: A Philadelphia jury awarded $2.78 million (including $500,000 in punitive damages) in favor of the estate of an 89 year old and against the nursing care center. The nursing center allegedly failed to adequately monitor and treat a pressure sore on the 89-year-old decedent’s buttocks and lower back while he was a resident for less than eight months. Notably, the decedent was admitted to two different nursing centers, but the jury only awarded damages against the latter because there was no proximate cause.
The decedent had been admitted to the first nursing center after suffering a stroke that left him paralyzed, and he already had a Stage I or healing Stage II pressure ulcer before being transferred to the second nursing center. Allegations were that that the nursing center failed to adequately communicate with either the physicians or family members, failed to adequately monitor and turn the patient, and although staff members of the facility complained to superiors that it was chronically understaffed, the complaints went unanswered.
- 2010: A Philadelphia jury entered an award of $6 million against a nursing center and hospital in favor of the estate of a 73-year-old patient. The decedent was hospitalized for 15 days before being transferred to a nursing center, where he remained for two weeks. Allegations included failure to prevent a sacral ulcer and failure to appropriately treat the ulcer, which led to its progression. The award included $3.5 million in punitive damages against the nursing center and $1.5 million against the hospital.
- 2010: A Camden, N.J., jury awarded the estate of a 62-year-old male $1.77 million where the plaintiff alleged the nurses at the defendant’s hospital failed to turn and reposition him during his three-day admission after his hip surgery, resulting in the development of decubitus ulcers. One of the ulcers was a Stage IV ulcer, which required skin grafting. The plaintiff alleged that he should have been turned every two hours, and he and his wife testified that they did not recall him being turned at all.
Recommendations For Facilities
Facilities should pay close attention to what may be called the “essentials” for a wound care program. The facility should employ a specific wound care policy detailing the responsibilities for each staff person involved in the process. Education of staff goes hand in hand with a good policy. Administration must educate staff about the contents of the policy and ensure that staff have a good grasp of what is required.
The facility should regularly train and re-train staff on wound care, emphasizing the importance of complete and accurate documentation. Staff performance and patient outcomes should be monitored and evaluated on a scheduled and as-needed basis. Administration should pay careful attention to Centers for Medicare & Medicaid Services (CMS) survey results, quickly and effectively addressing any identified deficiencies and making changes to existing policies or protocols to prevent future issues.
As noted above in the Estate of Cote case, survey results can serve as what is called “notice” in the law. This means that the facility is charged with knowledge of a problem.
For example, if a facility is cited for inadequate wound care in a January 2015 CMS survey, a plaintiff who develops a wound at the facility in July 2015 may cite the survey as evidence that the facility knew there was a problem and failed to address it.
Where a facility has knowledge of an issue and fails to address it, it may be faced with punitive damages. Therefore, facilities must pay careful attention to survey results and, in addition to correcting the issue in the short term, take action in the form of revised policies or protocols to address the issue in the long term.
Missed Opportunities Complete and accurate documentation of wounds and wound care is essential. The failure to pay close attention to this area invites litigation. Electronic medical records provide an opportunity for facilities to document more thoroughly and accurately, but they may open up a facility to legal exposure where staff do not “check all the boxes.”
Where there is an indication for a pressure relief mattress, check the box. Where there is a box for the potential for skin breakdown, check the box. Where there is a box for turning and repositioning every two hours, check the box.
In other words, each time there is an opportunity to document the fact that preventative or treatment measures were followed, do so. The failure to do so for any of these items creates the impression that they were not done. This is prime fodder for a plaintiff’s attorney, who will use this lack of documentation to imply (and persuasively argue) the measures were not followed.
Further, the failure of staff to know what they are supposed to document and when suggests that lower-level staff are not paying attention to skin care issues.
As noted above, nurse assistants have the most contact and most chances to enforce the skin prevention and treatment measures. Assistants are charged with the responsibility to turn and reposition patients and to see patients on a daily basis.
A facility must not only foster an environment for staff where they are cognizant and feel a sense of responsibility for providing skin care for their patients, but also an environment in which documentation corroborates the care being provided at the facility.
It’s Not That The Care Isn’t Done
The hardest thing to advise clients is that, despite the fact that they have great employees and are providing excellent care, the documentation is just not there and, therefore, they have exposure. It is difficult, if not impossible, for nurse assistants to overcome the pressure during depositions when confronted with the fact that they did not specify that certain measures were in place.
They will be faced with the question, “If it was there, why didn’t you mark it? Isn’t it because it was not in place?” This inevitably leads to an opportunity for the nurse assistant to throw the facility under the bus. Defensive testimony most often comes out during pressured questioning where an inadequacy is addressed on the part of the individual.
The natural reaction for many is to deflect any responsibility onto the facility. The assistant may say in her deposition that she just simply does not have enough time to thoroughly complete the forms or that she is overburdened with too many patients. The center wants to, and needs to, avoid both of these situations.
It is essential for staff to be educated as to the contents and selections available in the forms and to take the time to “check the box.” Undoubtedly, the wheelchair cushion is in place or the turning and repositioning schedule has been put into effect.
However, the lack of documentation presents a difficult obstacle for clients that can be avoided with proper education of staff, follow-up seminars, continuous evaluations of staff competency and performance, and an environment emphasizing the importance of documentation.
The old adage, “if it’s not documented, it didn’t happen,” rings true in the context of litigation. Check the box—and have no regrets.
Jacqueline Genesio is an attorney with Weber Gallagher in Philadelphia. She practices law in Pennsylvania, New Jersey, and Delaware. She can be reached at (215) 825-7214 or firstname.lastname@example.org.