The prevalence of pressure ulcers across all care settings is significant and expected to increase in the foreseeable future due to the aging population. As such, clinicians practicing in outpatient wound centers will be challenged with an increasing number of patients living with these ulcers and the need for expert guidance on care management. Because pressure ulcers are prone to litigation, it is incumbent on all wound care clinicians and program directors to understand how to best protect themselves and their clinics from civil lawsuits. This article will explore how to do this by reviewing: 1) the scope of the problem, 2) what constitutes a lawsuit, 3) why individuals sue, 4) how to practice preventive legal care, and 5) what to do if a suit is filed against you.
SCOPE OF PROBLEM
Estimates on the prevalence of pressure ulcers are noted to be 29% in home care, 28% in long-term care (LTC), and 15% in acute care. This equates to an incidence of 1-3 million people in the United States developing pressure ulcers each year, with two of every three ulcers occurring in those older than age 70.1 Pressure ulcers are highly litigated and are the second most common cause of civil suits alleging medical malpractice — superseded only by wrongful death suits. Traditionally, these lawsuits have focused on LTC institutions and acute care, but due to the large financial verdicts that can be garnered and the increasing prevalence, wound centers are increasingly vulnerable to the risk. In addition, many LTC facilities refer patients living with complicated pressure ulcers to wound centers, making these clinics possible targets if there is a lawsuit. The average settlement of a pressure ulcer lawsuit is $250,000, with some awards topping $312 million. Moreover, plaintiffs are favored in up to 87% of these cases.2,3 These monetary damages also do not include the sizeable cost of a civil suit on one’s reputation, time invested in defending the case, demoralization, lost productivity of a clinic’s staff, and the profound psychosocial stress experienced by the defendant. When one considers that most civil suits take two years to resolve, this can be very damaging to all parties involved.
WHAT CONSTITUTES A SUIT?
In order for a plaintiff to bring a civil lawsuit against a wound care clinician or wound center, the plaintiff is obligated to prove the following elements:
- That a duty was owed; if you are the provider, a duty is owed.
- Breach of duty; the provider deviated from the accepted standard of care for the pressure ulcer.
- Injury occurred.
- Said injury was caused by the breach of duty.2
While this would seem to be a high standard to prove, the reality is that any small breach, even in documentation, can leave the clinic and/or provider with significant liability. The authors’ collective experience has shown that even when great care was rendered, plaintiffs can always find examples in which providers could “have done a better job.” For example, there have been cases in which a pressure ulcer is documented as being on the ischium, but that same ulcer is being documented as located on the buttock, the hip, or even the sacrum in subsequent notes. Accurate documentation of staging is another problem area. Too often, we see cases in which stage II ulcers are described as having slough, and stage III ulcers are documented as partial thickness. There have been cases for which photographs are part of the medical record, but only serve to damage the defendant due to poor image quality, failure to include a ruler, failure to include a date, or even an incorrect photo being placed in the record. These inaccuracies make it more difficult for the defense to prove that the care was adequate and that providers were competent.
WHY DO PEOPLE SUE?
Lawsuits are levied for a myriad of reasons. Pressure ulcers are known to invoke feelings of significant anger on the part of the plaintiff. They also can lead to questioning the quality of care one has received due to their graphic appearance and because they have been popularized as being “preventable” in seemingly all circumstances. Any clinician has likely become accustomed to advertisements that encourage people to contact a lawyer if “they or their loved one has suffered from a pressure ulcer.” This constant communication, coupled with the negative emotions that one’s family might feel, is often enough to instigate a suit based on real or perceived negligence. But while the plaintiff’s initial motive may be justice or unearthing answers, most suits eventually do come down to money. When a patient elects to sue, he or she enters into a contractual contingency fee arrangement with the attorney, meaning that the cost of pursuing the suit is the sole responsibility of the attorney and that he or she will not garner any reimbursement from the suit unless it is won. Moreover, once a patient signs a contract with an attorney, the direction of the suit is primarily in the hands of the attorney, who may advocate for a larger settlement than what was intended by the plaintiff. Some states do have caps on damages, but this is not universal, and settlements can reach into the millions.
PRACTICING PREVENTIVE LEGAL CARE
As clinicians, we all understand the concept of preventive medicine and the importance of maintaining one’s well-being; we spend hours educating our patients on this and understand that this is time well spent. The authors’ experiences, however, find that clinicians do not apply this proactive approach when it comes to protecting themselves from litigation. Preventative legal care should be a concept that is familiar to clinicians and one that they ascribe to in their daily practice. Keys to maintaining a path for preventative legal care in one’s practice include:
- Don’t be complacent. Look at your patients with a critical eye at each visit and reevaluate contributing factors, particularly when healing goals are not being met. For example, if the provider documents that the patient’s specialty mattress is faulty, it must be documented that the problem was addressed and there must be comments on the outcome during subsequent visits. If a provider comments that a patient has an air cushion, he or she must also document that it is properly inflated and that the patient and/or caregiver knows how to adjust the inflation during follow-up visits. Similarly, it is not enough to check a prealbumin and prescribe a supplement. The provider must follow up to determine if the supplement is being accepted and if the prealbumin is improving. Comprehensive assessments are paramount to good care and minimizing one’s risk of litigation.
- Scrutinize policies and procedures that govern the care of pressure ulcers. All too often, the authors see policies that are overly strict and use absolute terms such as “never,” “must,” and “always.” Policies that are too strict and don’t allow for any deviation despite the uniqueness of each patient and his or her situation are prone to cause problems in the courtroom.
- Assess staff compliance with policies and procedures. Once policies and procedures have been approved, oversight of compliance on the part of the staff needs to be a top priority. Chart audits, shadowing, and regular meetings to educate on policies need to be added to the clinic schedule and be well understood by all clinicians working in the center. In addition, routine analysis of quality measures will help to ensure early identification of opportunities for improvement.
- Consistent and frequent communication with patients regarding the goals of care. Most patients come to a wound center for complete healing, but, as all providers know, complete healing is not always a reasonable goal. Thus, the clinician must offer each patient a prognosis and draft agreed-upon goals with the patient early in the relationship. Follow-up appointments should include the patient’s progress in meeting that goal, any modification needed to the treatment plan to achieve the goal, and an ongoing review to see if the goal remains viable.
- Comprehensive documentation/understanding limitations of the electronic health record (EHR). The authors’ collective experience is that the utilization of EHR’s can often lead to clinicians being task-oriented and result in less comprehensive care and being patient centered. Checkboxes can have a very well-intentioned purpose of reminding clinicians to assess relevant risk factors for pressure ulcers and their treatment, such as solid surfaces, nutritional status, positioning plans, and continence plans. However, this only results in good care if providers critically think through these issues at each visit. Remember to focus on the holistic nature of wound care and avoid being lulled by checkboxes. Resist the temptation to copy and paste, and do not assume that if a box is checked in a previous encounter that it is a completed task or that the issue is assessed adequately for all future encounters.
- Ongoing education. Clinicians need to stay abreast of best practices, current treatment strategies, and society recommendations for care. Also, do not forget that patient education (and documentation of that patient education) is vital. When the clinician is providing care to a patient who lacks capacity or is cared for by a skilled nursing facility, the education becomes more important (albeit challenging to deliver). The clinician and center must involve the healthcare decision-maker and the liaison for any facility that cares for the patient to ensure that the plan of care is understood and executed appropriately. It is important for the provider in the center to ascertain whether the facility or home care agency has the appropriate supplies, education, and personnel to execute the plan.
WHAT DO YOU DO WHEN SUED?
Even when taking all the aforementioned precautions, it is still possible that a case will be brought against any provider. Consider this anecdotal quote: “There are two kinds of healthcare providers in America, those who have been sued and those who will be sued.”4 Any clinician who is sued should take these important steps:
- Resist the temptation to discuss the case with colleagues, and, instead, contact your malpractice carrier and attorney.
- Familiarize yourself with the specifics of the case, as well as the policies and procedures of your clinic.
- Do not take personal notes without your attorney, as these could be used as evidence by the plaintiff.
- Finally, remember that this will likely be a long process and that the overall merit of the case cannot be deduced until you review it thoroughly with your attorney.
Pressure ulcers are common and highly litigated, thus making the wound center a vulnerable target. This vulnerability will only increase in the future due to the aging population, thus making it imperative for clinicians to focus on preventable legal risks. While clinicians will always spend the majority of their time, talent, and efforts in healing patients, they must earmark some time to protect their own legal liability so that they can continue to advocate and care for those who need good healthcare.
Kim Petrone is medical director of St. Ann’s Community, Rochester, NY, and the Wound Healing Center at Rochester General Hospital (RGH). Leanne Mathis is program director at the RGH Wound Healing Center.
1. Fleck CA. Pressure ulcers. J Legal Nurse Consult. 2012;23(1):4-14.
2. Bennett RG, O’Sullivan J, DeVito EM, Remsburg R. The increasing medical malpractice risk related to pressure ulcers in the United States. J Am Geriatr Soc. 2000;48(1):73-81.
3. Voss AC, Bender SA, Ferguson ML. Long-term care liability for pressure ulcers. J Am Geriatr Soc. 2005;53(9):1587-92.
4. Fife C, Yankowsy K. Legal Implications of Pressure Ulcers. Medline University. eCourse. 2017. Accessed online: www.medlineuniversity.com/lms/course/1010000059