"TORT REFORM" IS CODE FOR TAKING AWAY CITIZENS' RIGHTS

My column is usually devoted to straight talk about personal injury claims. I could not resist the temptation, however, to debunk current political rhetoric referring to the need for "tort reform." The phrase "tort reform" was coined by media spin artists to disguise the true meaning of what is being pursued, namely the erosion of citizens' legal rights. The reasons espoused for the alleged need to take away these rights have all been shown to be untrue by readily available statistics and data. Why all the fuss? Because the coalition of big insurance and right wing ideologues have made it a cause du jour, leaving facts and common sense trailing in their wake. Let's set the record straight.

First thing you need to know is what a "tort" is - a civil claim for money damages against someone who has violated a legal duty owed to you. This includes a broad spectrum of claims including auto collisions, premises liability claims, intentional assault and battery and medical malpractice, to name but a few. The rules for recovering money damages under any type of tort theory of recovery are governed by state law which has evolved in the United States during the past two hundred years. Tinkering with these rules should not be taken lightly. The civil justice system gives recompense to victims of injury while operating to discourage harmful conduct and render accountable those who harm others. It is nothing less than a pillar of a free and enlightened society, one which discourages victims from resorting to violence to extract revenge from wrongdoers.

What has changed today that, according to the alarmists, requires immediate legislative action? In reality, nothing. In my view, the crux of the current phenomenon is that insurance companies are trying to lessen their exposure for losses so they can make more profits. After all, insurers are the ones in the business of paying for tort losses (and collecting premiums for their trouble.) They are being joined by their physician clientele who are being squeezed financially by those same insurers (and health care insurers) for reasons having nothing to do with the tort system.

Recent studies show that continued accountability for medical malpractice is vital to maintaining quality medical care. Statistics show that medical errors are widepsread in America. One estimate is that medical errors kill 180,000 Americans each year. That's more than the recent tsunami disaster. Think it's a good idea to restrict medical accountability?

To put some more meat on the bones, let's discuss some of the popular myths.

Myth # 1: "Doctors can't afford malpractice insurance because of runaway claims and are going out of business, leaving the public without medical service providers." While some communities may have lost medical providers, the reason is not a systemic increase in claims. And in the national economy the number of physicians is increasing. Medical malpractice claims have remained fairly constant for years at about 5% of total medical costs. Premiums have indeed increased in many locales, because insurance companies decided to raise them. Why did they do so? Only the insurers know for sure. But studies have concluded that, like many investors, insurers experienced lower market returns in recent years and then sought to recoup those losses through premium hikes. Insurers are also enjoying the perverse outcome of reaping the benefits (i.e. higher premiums) of a problem they caused in what may be a deliberate effort to extract legislative changes to the tort system. Analysts currently indicate that insurer profits are generally at strong levels, so why the rate hikes?

Herein lies the fundamental problem: insurance. This is where governmental scrutiny should be directed. Why did the rate hikes really occur? How about some legislative hearings on this issue? Can government (with no profit incentive) provide more affordable insurance? Undoubtedly. Some states already have such programs consisting of a risk pool for physicians with affordable premiums.

Myth # 2: "Tort reform will make premiums lower so doctors can get coverage." Sounds good in theory, but experience shows this is not true. In California and other states, tort reform has not resulted in lower premiums. Higher insurance profits perhaps. And as any free marketeer can tell you, if current insurers are either doing a lousy job underwriting or charging premiums in excess of the real liability risk, lower cost, more efficient insurers will enter the market to fill the void. I predict this has already happened.

Myth # 3: "Greedy trial lawyers are adding new costs to the system that are making health care costs spiral." Simply not true. No respectable industry analyst makes this argument. Claims run at 5%, and damage caps are predicted to reduce those costs 0.5%. Paltry savings, folks, for so-called "reforms" that take away your rights in many different kinds of situations. Let's talk about some proposals.

Caps on pain and suffering. This type of damage claim is not only for pain and suffering caused by an injury but is also for: loss of enjoyment of life; physiological changes resulting in disability; inability to perform activities once enjoyed; reduced ability or inability to labor and provide for one's self; inability to have intercourse with one's spouse; reduced ability or inability to interact with children and family. The list goes on. Who is the best judge of how devastating an injury has been to someone, a jury or an insurance underwriter with an arbitrary cap? Imagine a child blinded and brain injured due to negligence - is his or her loss worth only $250,000? How about the loss to his parents - some fraction of the $250,000?

What they want to take away, folks, is nothing short of your constitutional right to a jury trial. If you cap damages, you handcuff the jury. It's that simple. And don't expect help from judges striking down bad laws which may be unconstitutional. The prime qualification for being selected as a federal judge these days is a demonstrated unwillingness to challenge the conduct of other branches of government.

Elimination of joint and several liability. This means where two defendants owe the plaintiff a money judgment resulting from a jury trial (a long and arduous road), it can be collected from either or both defendants. Sounds possibly unfair, but the idea is that an injured party who has proved his case should not have to chase multiple defendants for pro rata contributions. It is fairer to let the responsible defendants work it out, rather than the victim. If a defendant pays more than his share, he can sue the other defendant(s) for contribution. As a practical matter, this rule helps cases resolve by settlement. If a defendant thinks he is slightly less responsible than another defendant, absent joint and several liability he would have incentive to fight to the bitter end.

There are more bad proposals being discussed under the guise of "reform." The people advocating these new changes want to limit a vicitm's ability to hold a wrongdoer accountable, and to give certain classes of wrongdoers privileged status. As you might expect, the current rules that have evolved during the past two hundred years or so should apply to everybody. Suppose lawyers advocated limits on the amount a client can recover for a lawyer's malpractice? Actually, that may not be a bad idea...

And a federal law restricting a state jury's ability to award damages? This from a President whose party champions state's rights, self determination and freedom from government restriction? Out of the question folks.

Copyright 2005 by David L. Turner, all rights reserved.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A PARTICULAR MATTER, CONTACT COUNSEL OF YOUR CHOOSING.

GETTING HELP FOR INJURIES CAUSED BY CELEBREX WHICH , LIKE VIOXX, NOW LINKED TO CARDIAC RISK

In a development long suspected by trial lawyers, evidence has come to light indicating that Celebrex has the same defect as Vioxx - enhanced risk of heart attack or stroke. Persons who have suffered such injuries while taking Celebrex should seek an evaluation by legal counsel for potential claims against the drug's manufacturer, Pfizer, Inc.

Pfizer said on December 19, 2004, that it would stop advertising for its widely prescribed arthritis drug Celebrex after a study linked the medication to an increased heart attack risk. Pfizer reportedly spent $70 million marketing the drug in the first three quarters of 2004. While Pfizer indicated that it plans to continue selling the drug, the FDA said it was considering withdrawal of the drug from the U.S. market.

Celebrex (celecoxib) is from the same class of drugs (known as COX2 enzyme inhibitors) as Vioxx (rofecoxib) which was recently withdrawn from the market by its manufacturer, Merck & Co. Merck is facing an enormous number of claims, due in part to mounting evidence that Merck knew about potential hazards from Vioxx use which were not disclosed to the public in a timely manner.

The Celebrex announcement was prompted when the National Cancer Institute released the results of a long term study of the drug conducted on behalf of Pfizer. The Institute reported that patients taking 800 mg Celebrex had a 3.4 times greater risk of cardiovascular problems, while those taking 400 mg had a 2.5 times greater risk.

In a related development, the National Institute of Health reported today that it was suspending a three year Alzheimer's prevention trial after researchers found more heart attacks and strokes occurring in test subjects taking Aleve (naproxen). Naproxen is an over-the counter non-steroidal inflammatory drug (NSAID) that has been in use for pain relief for 28 years. The study involved some 2500 patients and was designed to test whether Celebrex or Aleve could reduce the incidence of Alzheimer's in healthy patients. Researchers determined that those taking Aleve had a 50% greater risk of heart attack or stroke than those taking placebo. The NIH said that it was influenced by the recent announcement concerning Celebrex, though, curiously, the NIH study did not report a similar finding for those taking Celebrex.

The finding concerning Aleve appears to discredit Merck's previous explanation that naproxen had a protective cardiovascular effect as compared to Vioxx , said to have a neutral effect.

Consumers who suffered heart attack, stroke, deep veinous thrombosis or related conditions while taking Celebrex or Vioxx should promptly contact counsel to evaluate potential claims. The applicable statutes of limitations under state law may bar such claims if not pursued in a timely manner.

Copyright 2004 by David L. Turner, Esq., all rights reserved. For more information contact the undersigned at (404) 688-6803, or write dlt@swtlaw.com.

THIS ARTICLE IS FOR INFORMATION ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A SPECIFIC MATTER CONTACT COUNSEL OF YOUR CHOOSING.

VIOXX: WHAT TO DO IF YOU THINK YOU HAVE A LEGAL CLAIM

If you or a family member were a Vioxx user for a significant period of time, you may have a products liability claim against the manufacturer of the product, Merck & Company. An enormous number of Vioxx claims are expected to be filed based on the factual circumstances surrounding the marketing of what is now acknowledged to be a defective product coupled with the potential for serious or fatal injury to some patients.

Merck, which obtained FDA approval to market Vioxx in 1999, voluntarily took the drug off the market in September of 2004. Merck withdrew Vioxx based on the results of an internal three-year study of 2,600 patients, half of whom received a 25 milligram dose of Vioxx and half of whom received a placebo. The company said these patients, treated with Vioxx to thwart the resurgence of colorectal polyps, a common precursor to cancer, showed no undesirable effects during the first 18 months of the study begun in 2000.

After 18 months, however, there was a pattern of increased risk of stroke and heart attack. Peter Kim, President of Merck Research Laboratory said that "while the cause of these results is uncertain at this time, they suggest an increased risk of confirmed cardiovascular events beginning after 18 months of continuous therapy".

How much are former Vioxx patients at risk? While the answer to this question is unknown at present, acting FDA Commissioner Dr. Lester M. Crawford stated that "(a)although the risk that an individual patient would have a heart attack or stroke related to Vioxx is very small, the study that was halted suggests that, overall, patients taking the drug chronically face twice the risk of a heart attack compared to patients receiving a placebo." Dr. Crawford added that FDA will closely monitor other drugs in this class for similar side effects, and that "all of the NSAID drugs have risks when taken chronically, especially of gastrointestinal bleeding, but also liver and kidney toxicity.

What Dr. Crawford did not say is that half of all heart attack victims die as a result. Doubling the risk of a catastrophic or fatal event is obviously significant, particularly for patients who may have already suffered those type of injuries while on Vioxx.

The FDA itself has come under fire recently for approving Vioxx in the first place, over the objection of some of its own scientists. FDA approved Vioxx in 1999 for the reduction of pain and inflammation caused by osteoarthritis, as well as for acute pain in adults and for the treatment of menstrual pain. It was the second of a new kind of NSAID (Cox-2 selective) approved by FDA. Subsequently, FDA approved Vioxx to treat the signs and symptoms of rheumatoid arthritis in adults and children.
At the time that Vioxx and other Cox-2 selective NSAIDs were approved, it was hoped that they would have a lower risk of gastrointestinal ulcers and bleeding than other NSAIDs (such as ibuprofen and naproxen). Vioxx is the only NSAID demonstrated to have a lower rate of these side effects.

In November of 2004 an expert with the FDA accused the agency in Congress of having pressed him to withhold results of a study showing potential dangers of the anti-inflammatory drug Vioxx. "I was pressured to change my conclusions and recommendations, and basically threatened that if I did not change them, I would not be permitted to present the paper at the conference," said David Graham, Associate Director for Science with the Office of Drug Safety at the FDA. Dr. Graham testified at a Senate hearing about his 2001-2004 study. "One drug safety manager recommended that I should be barred from presenting the poster at the meeting and also noted that Merck needed to know our study results," he said.

Whatever happened behind the scenes as Vioxx came to market is sure to be an evolving story, one with potential ramifications for the population of Vioxx patients who were injured by the drug. If it can be shown that Merck knew about the injurious side effects when the drug was still on the market, then claimants will have potential claims for punitive damages.

For those who took Vioxx, it is important to get a prompt medical evaluation to assess whether any cardiovascular damage may have occurred. If none has occurred, the possibility of pursuing a claim will be reduced though perhaps not foreclosed altogether. Claims may exist for those who suffer cardiovascular events within a short period of time after discontinuing Vioxx, though claims will be more difficult to prove as the time period between ingestion of Vioxx and an adverse event increases. The clearest claims will involve those who suffered heart attacks or strokes while on Vioxx. Counsel should be retained in those situations to conduct an investigation and determine whether Vioxx was a contributing factor to the injurious events.

Counsel can be hired to pursue Vioxx claims on a contingent fee basis, whereby attorney's fees are only owed if a recovery is secured on behalf of the claimant. I would expect most contingency agreements to be in the one-third to 45% range.

For more information, you may contact the undersigned dlt@swtlaw.com or call (404) 688-6800.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A SPECIFIC LEGAL MATTER CONTACT COUNSEL OF YOUR CHOOSING.

MEDICAL MALPRACTICE CASES: AN OVERVIEW OF THE CHALLENGING LANDSCAPE

Contrary to what you may hear in the media today, medical malpractice claims always have been, and continue to be, extremely difficult to pursue. Why? There are a number of reasons which I will discuss below. A note on terminology first: while the article applies to "medical providers" generally (i.e. physicians, nurses, dentists, etc.) I will speak largely in terms of "doctors" for ease of reference.

One major reason why these cases are difficult to pursue in the State of Georgia is that, prior to filing suit, a claimant must secure the affidavit of another medical provider from the same discipline as the defendant provider who testifies in the affidavit that the defendant was negligent. This is a tall order. (Only civil cases against professionals have this affidavit requirement.) As you might expect, most physicians are reluctant to testify against other physicians in their locality. It is bad for business. A vocal critic is apt to be viewed by his peers as fanning the flames of malpractice litigation, an industry which doctors perceive to be one of their worst enemies. The old adage of "what goes around comes around" also comes to mind; the thought is that if a doctor helps someone sue a colleague then that colleague may later help someone sue the doctor who testified. The net result is what has often been referred to as the "Code of Silence." While physicians are eager to testify in defense of claims lodged against their colleagues, it is rare to find one willing to go on record against a defendant in his or her locality.

How can a claimant overcome this hurdle? The prevailing practice is for counsel to hire an "expert" physician from out-of-state to evaluate a potential case and then testify if he or she is of the opinion that malpractice has occurred. Such experts typically charge substantial fees to simply evaluate a case, with on-going fees of like measure if they are willing to testify in the case. While some medical providers undoubtedly make substantial income as professional witnesses, lawyers are motivated to avoid "sleazy" experts whose credibility can be challenged. Experienced lawyers look for experts with superior credentials and solid experience who do not always testify for claimants, so that the expert's testimony will be credible and less subject to attack by the defense. The downside here is that reputable experts often respond that claims which may appear to the lawyer to be meritorious are, in fact, not meritorious at all. When this occurs, the lawyer will have spent thousands of dollars on his expert, not to mention many hours of his or her own time, with nothing to show for it.

Another factor making malpractice cases difficult to pursue is that doctors do not like to admit to errors that may be perceived as tarnishing their reputations. Further, their insurance policies (unlike most liability policies) typically require the doctor's permission before the insurer is allowed to make an offer to issue a payment to settle the case. With auto policies, for example, the insurer does not need the insured's consent to settle. In cases where the doctor refuses to consent, a trial is required.

Which brings us to another reason why these cases are difficult to pursue. The dynamics of a medical malpractice trial are usually skewed in favor of the physician. Defendants must be sued in their county of residence, so malpractice cases are litigated in counties where the physician is apt to be known to the jurors, if not personally at least by reputation. Juries will naturally be reluctant to find against a local provider who may have helped family members or acquaintances over the years. Adding to this difficulty is that the key witness for the plaintiff is the out-of-state expert with the funny accent who may appear on videotape. Also, it is not unusual for physicians with practice groups to have all of its members parade into the courtroom in their white coats to sit behind the defendant physician in a show of support.

Added to this already troubling dynamic is the argument that can be made in nearly every case: the human body is unpredictable, medicine is not an exact science, the doctor did his best and, though the patient may have had a bad result, it is not the doctor's fault. Proximate cause is usually an issue as well. The argument made on this point is that the claimed mistake has not been proven as the cause of the claimed injury. Patients often have prior health issues or conditions which make causation a debatable proposition.

Are you getting the picture? The ramifications of this difficulty in pursuing claims are quite significant for the would-be claimant. For one thing, lawyers will not be able to take "small" cases where a major, usually permanent injury has not occurred. Lawyers may need to invest ten, fifty or more thousands of dollars to prosecute a case, money coming out of the lawyer's pocket, money which is truly at risk of being lost. One example: many lawyers are unwilling to take cases where a sponge is left inside the patient after surgery. Though liability is clear, the value of such a claim may be in the $75,000 range, not enough to warrant the required investment of money and time.

Another ramification is that the contingency fee rate to hire counsel for these cases is high compared to other claims, due to the risk of an unsuccessful result coupled with the high degree of legal expertise required. My experience is that contingency fees for such cases are in the 40-45% range, perhaps more.

Something else to consider: this is a specialized type of claim that requires a specialized lawyer. There are many technical requirements to successfully litigate these cases which can be a minefield for the general practitioner. Make sure your counsel has experience with this type of claim.

Copyright 2004 by David L. Turner, Esq. All rights reserved. For more information contact the author dlt@swtlaw.com or call 404-688-6800.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A SPECIFIC LEGAL MATTER CONTACT COUNSEL OF YOUR CHOOSING.

AUTO COLLISIONS: FINDING INSURANCE COVERAGE TO MAXIMIZE COMPENSATION

One of the critical duties of legal counsel is to identify all possible sources of insurance coverage for an injured client. If the liability insurance coverage for the tortfeasor (wrongdoer) is adequate to pay for the injuries sustained, then this issue is largely resolved. In cases where liability coverage may be inadequate, however, this issue becomes pivotal. The analysis of available coverage can be technically complex, so claimants desperately need the benefit of capable counsel in serious cases.

Think an insurance company will volunteer that it has liability coverage and a duty to pay for the actions of the wrongdoer? Not likely. Insurers typically refuse to discuss the amount of their coverage obligations unless forced to do so. Georgia statutory law provides a mechanism to force an automobile liability insurer to disclose its policy limits to a claimant within 60 days. Unless the insurer receives such a letter in complete compliance with all the technical requirements of the statute, it will likely decline to disclose its policy limits. Even after a statutory demand, carriers may neglect to disclose umbrella insurance policies or other coverages which could potentialy benefit a claimant. Consequently, claimant's counsel must be continuously on the look-out for additional insurance coverage.

Let's take an example that will segue into discussion of another important coverage feature - uninsured motorist coverage (UM). Suppose Paul Passenger is in a rental car when he suffers two broken legs in a collision where the driver of Paul's vehicle makes a driving error. Paul's medical expenses are $50,000 and he will never walk normally again. We'll assume the total value of his claim to be $500,000. Where to look for coverage? The first place to look is the driver's coverage. Under Georgia law the driver's coverage is primary unless he bought optional insurance from the rental company. Let's assume no optional rental insurance, and the driver has minimum limits required in Georgia of 25 /50 (meaning $25,000 per person/maximum of $50,000 per occurrence.) This means that the maximum to be gotten from the driver's insurance is $25,000, clearly not enough. It may surprise some to learn that the next place to look is the rental company. Georgia statutory law requires renters to provide minimum limits coverage on every vehicle, so there is another $25,000 in excess coverage to be potentially had from them. I say potentially because "stacking" rules in the rental policy may affect the outcome. Let's assume the renter's $25,000 is available too. That's $50,000, still way short - where to look next?

The answer is uninsured (or underinsured) motorist coverage. This is coverage that the passenger can purchase for himself in his own auto policy. Note that he is not required to buy this coverage at all, though it is foolish not to do so. UM coverage is cheap, and the insured can purchase UM with limits as high as his liability coverage. The fact that this coverage is both inexpensive and risky for the insurer sometimes results, in my opinion, in the insurer declining to explain its availability and utility to the insured. Back to our example: suppose Paul has two separate auto policies for his two cars with $250,000 UM coverage for each car. How much coverage is available to him? Paul is under-insured by $450,000, the difference between his claim value and the amount of liability insurance. Looking to his UM, Paul can probably "stack" his two separate auto policies in this situation to generate total UM coverage of $500,000. (The result would be only $250,000 if Paul had one policy covering both cars.) The UM carrier(s) will be exposed to pay $450,000, the amount Paul is under-insured.

Our hypothetical has a happy ending where there is enough total insurance to fully compensate Paul for the claim. In the real world this is often not the case. I have seen many catastrophic claims where the total coverage is only a tiny fraction of the medical expenses incurred. This is why UM is such an important coverage.

There may be other sources of coverage not discussed above in any given case. The lawyer must often exercise creativity and professional expertise in order to find the insurance. If you have a serious injury where coverage is an issue, do yourself a favor and hire counsel.

Copyright 2004 by David L. Turner, all rights reserved.

DISCLAIMER: THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE ABOUT A SPECIFIC MATTER, CONTACT COUNSEL OF YOUR CHOOSING.

NURSING HOMES: WANDERING AND ELOPEMENT CASES

Is a nursing home responsible when a patient wanders around or elopes from the facility and is injured or perhaps killed? While the answer depends on the surrounding factual circumstances, claims involving this scenario are frequently pursued.

Nursing homes must have procedures to address the known tendency of certain residents to wander or elope from the facility altogether. Patients with dementia or Alzheimer's may develop a propensity to wander for various reasons which may include fantasy, agitation or a need for recreation. Patients with other cognitive problems may also wander.
While estimates of the percentage of residents who wander varies, some experts place it in the range of 25%.

What is a nursing home required to do to address this situation? In order to satisfy the general statutory requirement that residents be maintained at their highest level of physical and mental well-being, most facilities have recreational activities to exhaust the exercise needs of patients. For those residents who engage in excessive wandering behavior, the nursing home must identify those residents who are at risk of wandering or elopement then develop a multi-disciplinary care plan tailored to those individuals which addresses wandering behavior which could be injurious to the resident.

How should the facility respond for patients who are known to have a propensity to wander? Many nursing homes have developed Specialty Care Units within the nursing home to accommodate the needs of wanderers. These Units have secure environments free of obstacles and hazards which allow the residents to wander within the facility. All facilities should take steps to minimize physical hazards within the facility which could be injurious to wandering residents. Many facilities have also adopted the use of security and alarm systems which actively monitor entrances/exits, hallways, the perimeter of the facility and the resident's location within it. Residents may have proximity identification tags which trigger alarms in the event they attempt to leave the facility. The physical design of the facility is also important to address the potential for wandering and maintain security of the residents.

Litigation of such claims typically focuses first on whether the care plan adopted for the resident was appropriate in light of the resident's previous behavior. The nursing home's procedures will also be evaluated to assess whether the facility adequately addressed the needs of wandering residents both in theory and in practice. Counsel will also review the floor plan, physical design of the facility and security systems in place to address the safety and security of wandering patients. Claimants will also seek access to prior wandering incident reports which can be used as evidence in appropriate cases to demonstrate notice to nursing home management of wandering residents. The response of management to prior incidents will then be a pivotal issue to evaluate whether the facility complied with its duty of care for the particular resident.

Nursing home cases are expensive and risky for attorneys to pursue on behalf of claimants, so contingency fees can be expected to in the 40% range or higher.

Copyright 2004 by David L. Turner, all rights reserved. For more information, contact the author dlt@swtlaw.com or 404-688-6800.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE REGARDING A PARTICULAR LEGAL MATTER, CONTACT COUNSEL OF YOUR CHOOSING.

NURSING HOME CLAIMS: THE PRESSURE SORE CASE

Many nursing home claims involve pressure sores, sometimes referred to as decubitus ulcers (an older but now less favored term.) Pressure sores consist of breakdowns in the skin which are typically manifest at joints and other areas of contact between the bedridden or limited mobility patient and his or her bed or chair. Claimants contend that pressure sores are symptomatic of neglect and failure to properly monitor and maintain the well-being of the resident. Defendants in such cases often argue that pressure sores are inevitable in certain patients due to advanced illness, age and lack of mobility. In the author's opinion, pressure sores are usually preventable. This opinion is based on recent testimony elicited by the author during the deposition of a nationally known physician specializing in nursing home care who testified that in his experience pressure sores occur in less than 1% of the residents at facilities where he has practiced.

A basic understanding of pressure sores facilitates the discussion of appropriate care and treatment. Healthy persons, almost without thinking, frequently change position and shift their weight in response to stimuli or discomfort. The limited mobility patient may be either unable to move or lacking the physical sensation to initiate a proper response to environmental stimuli. As a result, skin becomes irritated and, over time, can become susceptible to breakdown. Other factors also play a vital role in determining skin health and integrity, including disease processes, medication, hydration, nutrition, incontinence, shearing forces, clothing and environmental sources of skin pressure and friction. The nursing home patient is recognized to be at risk of developing pressure sores, so governmental regulations and industry safeguards have been implemented with the goal of preventing the formation of sores, and, when sores do develop, to promptly recognize and effectively treat sores with a multi-disciplinary approach.

The condition of the nursing home patient should be documented in detail upon admission. This is done by preparation of a federally mandated form known as a Minimum Data Set (MDS). The MDS is required to be done at least annually or when a change in condition occurs with regard to at least two major life functions. Skin condition is required to be monitored on an on-going basis, including use of the Braden Scale to evaluate patients who are at high risk for development of sores. The Braden Scale is a chart which assigns values to various elements of the patient's condition. The overall score is then used as a predictive measure for pressure sore risk.

Sores which do occur should be charted and "staged," with on-going charting of wound care and treatment until the sore heals. The four stages are defined as follows:

Stage I: A reddened area on the skin that, when pressed, is "non-blanchable" (does not turn white). This indicates that a pressure ulcer is starting to develop.
Stage II: The skin blisters or forms an open sore. The area around the sore may be red and irritated.
Stage III: The skin breakdown now looks like a crater where there is damage to the tissue below the skin.
Stage IV: The pressure ulcer has become so deep that there is damage to the muscle and bone, and sometimes tendons and joints.

Nursing homes can be expected to have an internal written algorithm for the treatment of pressure sores. In cases where the level of care is being evaluated, the facility's internal procedures should be obtained and reviewed. If the facility has violated its own policies and procedures, such evidence will be admissible as proof of negligence.

Patients with particular vulnerabilities to pressure sores based on certain aspects of their condition should have an overall care plan which addresses those weaknesses. For example, patients with muscular atrophy and dysfunction should receive physical therapy to improve mobility and prevent the formation of contractures. Patients with poor nutrition should receive dietary monitoring and professional oversight by a Dietician to ensure adequate caloric intake and hydration. Patients who are immobile should be turned and rotated every two hours by the staff. Patients who are incontinent should be cleaned promptly and provided with fresh bed linens. Patients with existing sores should receive frequent dressing changes and other therapies ordered by the treating physician. Therapies may include medicines, ointments and pressure relieving systems such as special mattresses and chair pads.

Pressure sores can occur for multiple reasons which can make the prosecution of such cases a challenge. From the attorney's standpoint, it may be necessary to hire multiple experts to evaluate the care and treatment provided to a patient. There are many care providers in the nursing home setting with duties which may impact the development and treatment of pressure sores, including the physician, nurses, nurse assistants, physical therapists, dieticians and even the Administrator if the adequacy of staffing is an issue. In Georgia an affidavit by a professional familiar with the duties required of the care provider in question must be obtained prior to filing a complaint for professional malpractice, so multiple affidavits may be necessary in cases with overlapping lapses in care by multiple care providers.

Nursing homes have a duty to ensure that patients at risk for sores receive preventive care and treatment, proper therapy for existing sores and physician consultation or referrals when necessary. Physicians have a duty to provide adequate care and treatment to the patient, but the physician may visit the nursing home resident only once every 30 to 60 days. Consequently, it is up to the nursing home staff, particularly the Director of Nursing, to recognize situations where physician input and orders are needed. When sores are advanced, referrals from the physician may be needed to a dermatologist or surgeon outside the nursing home who can provide sharp debridement of sores or other therapies.

Nursing homes and treating physicians should notify family members when pressure sores occur. This duty is heightened when the sore becomes advanced, or when decisions must be made by the family for a declining patient. One issue which often arises is whether a patient who is not getting adequate nutrition from his or her diet should receive a feeding tube. The family should be notified that inadequate nutrition will result in sores and that a feeding tube may be the only viable remedy. Social Services personnel typically work with the family to make decisions regarding living wills and the nature and scope of care to be provided.

Cases involving advanced pressure sores can have tragic consequences. Pressure sores can result in widespread tissue necrosis, infection of the bones and fatal systemic infections. Patients may require amputation of limbs or other surgical interventions to achieve any hope of survival. Unfortunately, many cases are presented to counsel as a wrongful death case where the resident has expired.

Pressure sore cases can result in large settlements or verdicts despite the advanced age of victims. Juries in Georgia and throughout the United States have shown a willingness to issue substantial awards where neglect or abuse is proven.

Copyright 2004 by Schulten Ward & Turner LLP. All rights reserved. For more information, call the author at (404)688-6800 or e-mail dlt@swtlaw.com.

DISCLAIMER: THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR ADVICE REGARDING A PARTICULAR MATTER CONTACT COUNSEL OF YOUR CHOOSING.