The lawyers are watching; can your program stand a legal test?

Following proper care guidelines keeps you out of court

After a stroke immobilized her and incontinence set in, the 76-year-old diabetic woman was admitted to a nursing home. Within a few months she developed pressure ulcers, including a large wound on the coccyx and another on her left heel. When the ulcers advanced to a Stage IV level, the woman’s left leg was amputated. Barely two months later, she died of septicemia.

Her family went to Debra Green, JD, with their story. An Atlanta attorney, Green deals predominantly in nursing home medical malpractice suits. She listened as the woman’s children described how their mother was often left to sit in a dirty diaper. She listened as a granddaughter asked why the nurses hadn’t helped her grandma finish her meals so she wouldn’t be hungry.

Green looked at photographs of the patient’s wounds, which were released by the institution upon request. In one photo, the woman’s internal organs were visible through a 12-inch cavity created by the sepsis.

She read the patient’s medical records and consulted with a nurse expert and a physician expert who pointed out where the standard of care had been violated. A lawsuit against the nursing home resulted in $250,000 out-of-court settlement.

That account, as told by Green, is a typical scenario for lawsuits against hospitals and nursing homes with shockingly deficient wound care programs. According to Green, some of these settlements have reached $1 million.

Follow the standard of care

How can you minimize the likelihood that your risk-sensitive wound care program will find itself in court? The most obvious preventive measure is basic good care. "If you meet the proper standard of care and a problem develops anyway, there’s no liability," says Green. However, she adds, the standard of care often is overlooked. "Everyone should be reading the Clinical Practice Guideline on Pressure Ulcers in Adults, put out by the Agency for Health Care Policy and Research," she emphasizes. (For information on obtaining the guidelines, see the source box at the end of this story.)

"I’m using those guidelines along with the federal regulations and the policies of the institution as evidence of the standard of care," Green says. "It comes down to basic care, good nutrition, and proper hydration. If people can’t figure this out, they are beyond ignorant, they are cruel."

The wound care protocols and guidelines a hospital or nursing home puts forth can work both for it and against it in determining liability. "If they don’t meet their own standard of care, they are in trouble," asserts Green.

Education, documentation are key

Tamara D. Fishman, DPM, president of the Wound Care Institute in North Miami Beach, FL, stresses that it is the individual clinician’s responsibility to be educated on wound care. "Every facility should have some measure of assessment, but most do not," she says. Although she encourages the establishment of protocols for each etiology of a wound, Fishman recognizes that patients have varied medical histories and backgrounds. "You at least need an algorithm to follow. ‘When do we refer to orthopedics? When do we refer to vascular?’ These are the issues I think should be dealt with by every facility treating wounds."

Richard Maggi is a defense lawyer with McDermott & McGee in Millburn, NJ. His firm represents hospitals and physicians involved in personal injury litigation and medical malpractice. "I recommend having a procedure manual, although that can work both ways," says Maggi. "It can inculpate the nurse for not doing her job if she was given the procedure, but at least it gets the hospital off on a lack of proper training. Then you’re only saddled with the issue of whether your employee didn’t do something they should have done. The manual could prove the case against the nurse."

The best defense is to be well-documented, Maggi advises. "If you did something wrong, the documentation may prove the case against you, but you’re not fighting the issue over one person said one thing and another person said something else because it’s been documented. If the documentation shows you did something you were supposed to do, then you have proof and you can better defend yourself. Nothing guarantees you are going to win; it just makes it better for you in terms of defending the case."

In fact, Maggi was involved in a case in which lost documentation led to a judgment against a doctor. "There was a record missing. Although it was partially documented through a letter to the referring physician, the actual notes were gone, and it hurt us."

Take photos and good SOAP notes

"A good documentation system consists of a camera, good SOAP [subjective, objective, assessment, plan] notes, and a wound care report. That’s all you really need," says Fishman. She uses a form to document the wound’s location, size, duration, depth, and other factors. (See sample of the form on p. 3.)

"I hate checklists because most of the time people don’t know what they’re checking or understand what they’re checking. And it’s too easy to lie," adds Fishman. "I want someone to give me a written report of what they see."

Photographs of wounds are vital to a good documentation system. "Make sure they are dated, initialed and preserved well so that you can show a chain of evidence," suggests Maggi. (See story on photographs and other documentation tools, p. 2.)

Finally, consider your bedside manner. "My perception is that jurors are sensitive to a breach of the intimate physician-patient relationship," Maggi points out. "It’s common sense that if you treat people in a caring manner, as patients and not as customers, then it’s less likely that someone’s going to bring a suit against you."