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.