Legal Review & Commentary

Nursing Home Resident's Bedsores Lead to Death; $18 Million Jury Verdict in New York

by: Radha V. Bachman, Esq.

Buchanan, Ingersoll & Rooney, P.C.

Tampa, FL

News: A 76-year-old retired butcher and truck driver with dementia was admitted to a nursing home. During the man's stay, he suffered from dehydration and also developed several bedsores requiring hospitalization. During his hospitalization, the man underwent a diverting colostomy, a treatment for infected bedsores. Unfortunately, however, exacerbated bed sores led to the man's death 14 months after being admitted to the nursing home.

Background: After finding that more advanced care was required to treat a 76-year-old man suffering from Alzheimer's disease, a family admitted the man to a nursing home. Due to his condition, the nursing home used restraints to keep the man from wandering off. While a resident at the nursing home, the man suffered from dehydration and bedsores requiring hospitalization. The bedsores eventually became infected with E. coli. Nine months later, the man was discharged from the nursing home and transferred to another facility. At the time of the transfer, the once-250-pound man had lost over 100 pounds and was suffering from more than 20 bedsores, which progressed to state-IV bedsores, also known as decubitus ulcers. The man's condition required five additional hospitalizations, and he underwent repeated debridment of infected tissue and a diverting colostomy. Nevertheless, the infection spread and ultimately led to organ failure and the man's death.

The man's estate brought suit against the nursing home. The estate claimed that the man was in relatively good overall health at the time of admission, able to walk on his own, and that the bedsores and weight loss were a result of staff negligence. Information was set forth that the man had only been moved by the nursing home staff once, at most, every four hours, when medical standards required restrained patients to be moved at least once every two hours. The claim also stated that the man was allowed to reside in his own feces and suffered from dehydration and malnourishment.

The nursing home impleaded the hospital and contended that the man's nutrition was adequately monitored, that bedsores were unavoidable given the man's condition, and that the hospital allowed the bedsores to further exacerbate to the point of infection.

The hospital countered by claiming that the man's condition and subsequent death were a result of the nursing home's negligent care. The hospital provided evidence that it had taken necessary action to prevent further infection and was ultimately found by the jury to have acted in accordance with the standard of care.

The estate sought damages for 13 months of pain and suffering, as well as punitive damages. Following a four-week trial and two days of deliberation, the jury awarded damages to the family in an amount of $3.75 million for pain and suffering and $15 million in punitive damages. A lawyer for the plaintiff indicated that the punitive damages were awarded based on the fact that the nursing home had attempted to cover up the neglect. Specifically, records illustrated that nursing staff consistently notated "G" for "good skin condition." These "Gs" were eventually written over with "Bs," indicating "areas of broken skin." An FBI agent who served as an expert witness for the estate determined that more than 100 alterations were made to the record before it was provided to the man's family. The estate's recovery was ultimately reduced due to a high/low agreement for $750,000/$75,000 that was entered into by the parties prior to trial. This was the first time in New York history that a jury had awarded punitive damages in a case against a nursing home.

What this Means To You: This case represents a myriad of all that can and will go wrong when there is noncompliance with regulatory requirements and standards of care. It is difficult to comprehend how failure to provide adequate and appropriate care within a health care setting was tolerated in such a manner. This case involves not only clinical staff, but it also involves the organization's medical and administrative leaders as well. Health care leadership in acute and long-term care is responsible for quality of care monitoring and oversight of the delivery of care within the organization.

Alzheimer's disease is not a precursor for decubitus ulcers, systemic infections, malnutrition, weight loss, or a diverting colostomy. It would be difficult, if not impossible, to justify to any jury Alzheimer's disease as the primary factor in the harm and subsequent death of an ambulatory 76-year-old with dementia. What speaks vividly to a jury is the health care acquisition of more than 20 bedsores, a 100-pound weight loss, malnutrition, and dehydration. Use of restraints without systematic and continuous reassessment is not acceptable. The same is true for the monitoring of skin integrity. What screams to a jury and all health care consumers is the act of altering medical records to disguise or delete evidence of neglect and/or substandard care.

The Joint Commission (TJC) defines a decubitus ulcer as a "breakdown of skin and subcutaneous tissue due to prolonged, unrelieved pressure over a bony prominence, often associated with malnutrition, paralysis, or physical deformity." In this case, the development of numerous ulcers, due to the use of restraints to prevent wandering (resulting in lack of mobility and skin pressure relief), failure to assess, reassess, prevent, report, and appropriately treat developing ulcers, and lack of adequate nutrition and hydration, placed the resident at risk for deterioration and death — and placed the nursing home at risk for difficult-to-defend litigation.

The Joint Commission recognizes that a late-stage Alzheimer's patient may typically be "incontinent, often bedridden, and may have difficulty with seizures, swallowing, infections, and communication." This recognition does not, however, excuse a facility from providing the best care possible to avoid unnecessary deterioration, complications, or harm for a resident. TJC provides, in its National Patient Safety Goal on Pressure Ulcers, information on pressure ulcer risk assessment tools and preventive methods. Prevention actions include, but are not limited to: skin inspection, skin cleansing, use of moisture barriers and massage, nutritional support, use of appropriate positioning, transferring and turning techniques, a plan to maintain or increase mobility and activity levels, use of repositioning devices, staff educational programs on assessment, prevention, and treatment protocols, and hand-off communication that includes relevant information regarding the resident's risk of developing a pressure ulcer, as well as the treatment and status of any existing pressure ulcers. Such actions are low in capital cost, high in benefit, and supported by federal and state agencies through regulatory requirements.

The indication of E. coli as a source of infection in the ulcers represents a failure to meet the preventive action of skin cleansing and works to substantiate the plaintiff's claim of having allowed the resident to "reside in his own feces." This only adds to the difficult-to-defend issues in this case.

Amendment of a record for accuracy and completeness may be beneficial if it is done in a legitimate manner and in accordance with an organization's medical record policy and procedure. Drawing a line through an incorrect entry and explaining the correction is appropriate; writing over letters, words, or numbers lends itself to the appearance of alteration, and alteration is unacceptable, indefensible, and could be considered criminal.

This is a tragic case. The jury saw it as such, evidenced by their award of $15 million in punitive damages for the first time in New York history in a case against a nursing home. The Centers for Medicare & Medicaid Services (CMS) is poised to monetarily reward health care providers who excel in all aspects of health care services and penalize those organizations who fail to achieve top rankings in the standards of care. As health care leaders, we must learn from the examples presented here. We must empower staff to report care concerns and assessments; we must provide the tools and resources necessary to ensure and sustain do-no-harm care. In an era of low reimbursement rates, ever-increasing regulatory requirements, and high medical malpractice costs, we all must find creative and effective ways to achieve and deliver excellence.

Reference

1. Supreme Court, Second Judicial Circuit, Kings County, New York, No. 40307/04.