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By Mark K. Delegal, Esq., and Jan Gorrie, Esq.
Pennington, Moore, Wilkinson, Bell and Dunbar, P.A.
News: The daughter of a nursing home patient, acting as personal representative, reached a $1.1 million settlement with the nursing home where the patient developed infected skin ulcers and had contracted to a fetal position. The daughter alleged that nursing home personnel failed to adequately address the patient's medical conditions.
Background: At age 83, the Alzheimer's patient entered a skilled nursing facility on May 8, 1992. The patient remained there until her discharge 30 months later on Nov. 3, 1994. During the final month of her stay, she developed decubitus ulcers on her left hip and coccyx and subsequently was transferred to an acute care hospital. The daughter alleged that the patient suffered from stage IV pressure ulcers that were draining foul-smelling gray/green discharge, that the patient was dehydrated, and that she had lost a significant amount of weight in the last months of her stay.
Nursing home records indicate that the patient had eaten less than 25% of her meals in the last months and that her physician had not been notified of the potential nutritional problems. Further, at the time of discharge, she had contracted to a fetal position, the records show.
The plaintiff sued under a Florida law that allows nursing home patients to bring a civil action and recover attorney's fees, costs, and damages (including punitive damages) when the patient's right to receive adequate and appropriate health care has been violated (400.023, Florida Statutes). This action is allowed in lieu of a wrongful death suit.
In the complaint, the resident's daughter alleged that the nursing home failed to follow the physician's orders, carried out treatments that were given without the physician's orders, and failed to notify the physician of significant changes in physical and mental health. Nursing home records indicated nursing notations made for services rendered when the patient was on an extended leave of absence from the facility; there was other evidence of falsified patient records as well, the complaint alleges.
The nursing home contended that nursing care was provided and available to the patient and that the patient's decline was attributable to her Alzheimer's disease.
What this means to you: "Documentation was a significant issue in this case, which is a deviation from nursing practice standards, whether falsified, as alleged, or inadequate, which is also alleged," says Leilani Kicklighter, RN, ARM, MBA, DASHRM, assistant administrator for safety and risk management with the North Broward (FL) Hospital District, and a past president of the American Society for Healthcare Risk Management. "From a claims perspective, falsified documentation can be a fraud and abuse/ corporate compliance issue, can modify the statue of limitations, and can be the basis of punitive damages," she says. "In addition, those professionals who made false entries in the medical record have exposed their professional license to review by their respective professional boards for disciplinary action, and certified patient care assistants jeopardize their certification.
"Further, if the facts of the case should reach the Joint Commission on Accreditation of Health care Organizations — if the organization is an accredited organization — the state regulatory agency, or the Health Care Financing Administra-tion, the organization could be subject to a survey and potential loss of Medicare funding and/or accreditation/licensure. All of these potential issues are risk exposures that are significant," says Kicklighter.
The risk manager of a long-term care facility must put in place concurrent quality control measures that periodically review orders, physician progress notes, and nursing notes against the actual status of the patient, Kicklighter says. "It is recognized that contractures and decubitus do not occur overnight; therefore, the risk manager should work with the nursing service to implement a system to identify and report to nursing and risk management skin breakdown and significant reduction in mobility of patients.
"It is recognized that in some instances, in spite of outstanding nursing care, skin breakdown cannot be totally prevented. In those cases, and in all others, too, all preventive efforts must be implemented and properly documented.
"Methods to identify breaches in skin integrity might be to develop a skin assessment team that evaluates all pressure points against standardized criteria on all patients on a daily basis, develop standardized criteria to evaluate risk factors, and devise standardized preventive measures," she says. "Furthermore, the risk manager should conduct regular inservice sessions to address documentation, nutrition, passive range of motion, and communication with the patient's physician and the facility's medical director. In addition, the risk manager should periodically re-emphasize the requirement to complete incident reports to report situations that are unexpected [or] out of the ordinary. . . ."
Wade v. Arbors Health Care Company, Leon County, FL, Circuit Court, Case No.95-1194CA.