Bedsore lawsuit increase could new signal problems

An increase in bedsore malpractice lawsuits could be symptomatic of an overall risk management crisis for nursing homes and home health care, cautions an insurance industry insider.

A recent study from Johns Hopkins Univer-sity in Baltimore suggests there has been a sharp upward trend in bedsore-related malpractice lawsuits, fueled in part by federal nursing home reforms.1 According to the report, 94% of 173 lawsuits related to bedsores filed between 1937 and 1997 were filed in the last 15 years. Richard Bennett, MD, the author of the report and a physician at Johns Hopkins University Medical Center, blames the trend on the Omnibus Budget Reconciliation Act of 1987 (OBRA-87), which provides guidelines on how to prevent and treat pressure ulcers in nursing homes.

"While these guidelines have helped to improve the quality of care provided to nursing home residents, they have also made it easier to prove negligence when bedsores develop," Bennett says. "OBRA-87’s detailed set of requirements regarding every aspect of nursing home care makes it easier for plaintiffs to prove that a provider was negligent in the care of a nursing home resident."

The study found that an average of two lawsuits involving pressure ulcers were filed each year before the act passed, compared with nine lawsuits per year after it passed in 1987. When OBRA-87 regulations were published in 1992, the number of lawsuits jumped to 19 per year.

Bennett also found that the median age of patients filing lawsuits related to pressure ulcers increased significantly to 72 years from 48 years following passage of OBRA-87. However, the legislation did not dramatically change the amount of money awarded to patients, with the median settlement around $250,000. More than 20% of nursing home residents develop a pressure ulcer after two years in a facility, Bennett says.

Bennett says bedsore malpractice lawsuits are likely to increase as the population ages and more patients receive care in nursing homes and by the home care industry. That idea is endorsed by R. Stephen Trosty, JD, MA, director of risk management at Mutual Insurance Corporation of America in East Lansing, MI. He says the insurance industry has noted "a definite upsurge in cases against nursing homes." The most telling indicator is that the insurance industry has hardened substantially when it comes to insuring nursing homes, with many carriers leaving the market and the remaining insurers raising rates as much as 150% in some cases.

"Historically, there have been very few suits against nursing homes, and most of those were dismissed or had low judgments," explains Trosty. "That’s really changing. The hardening of the insurance market very often is a good indication that you’re seeing some kind of problem, an upturn in claims, judgments, and severity. That’s what you’re beginning to see in nursing homes."

Improve your reporting

As insurance rates go up, Trosty says, risk managers will be under increasing pressure to show they have appropriate policies and incident reporting mechanisms in place for pressure ulcers.

"When there wasn’t a large amount of litigation, there wasn’t a lot of attention paid to nursing homes by risk managers," he says. "Now is the time to make sure you’ve got quality measures in place — appropriate incident reporting. Nursing homes are notoriously poor when it comes to appropriate reporting mechanisms."

Even though there appears to be an increase in lawsuits, Bennett points out that "not every pressure ulcer that develops results in litigation, and not every case is a win for the plaintiff." The study data showed that more than a third of the cases resulted in wins for the health care provider. Bennett says these factors were associated with decisions in favor the health care defendant:

• a medical record that showed the standard of care for pressure ulcers was adhered to rigorously;

• verification in the record of underlying disease and complications that made the development of pressure ulcers inevitable;

• aggressive and comprehensive programs used by the facility to prevent and treat pressure ulcers.

Other successful legal defenses included demonstrations of the patient’s contributory negligence by refusing to comply with the care plan, and medical conditions that made it impossible to reposition the patient in a way that would reduce the chance of pressure ulcers.

"The best defense to pressure ulcer litigation, however, was demonstrating strict adherence to the care standards of the industry," he says.

Watch nursing homes carefully

Most risk managers should devote "a lot more attention" to what’s going on in their nursing homes, he says. Make sure care plans are adequate and that they are being followed properly. Monitor nursing homes on a regular basis to watch for an increase in slips and falls, use of restraints, and bedsores. All can signal a potentially serious problem in patient care.

The risk may be greatest in freestanding nursing homes, Trosty says. They often do not have a risk manager on the premises, relying instead on the risk manager of a parent company or sister facility. While that arrangement can be sufficient, Trosty says, it does mean there is a greater likelihood that a problem like excessive bedsores can be overlooked.

"Many of the same concerns apply to home care as well," he says. "You have additional concerns beyond what may be typical in a hospital setting because there are questions of supervision. When you’re not in the facility with your patients, that separation can lead to some difficulty in making sure everyone is following the procedures you expect."

For home care, Trosty suggests risk managers pay particular attention to employee background checks. The hospital must be able to trust the health care provider to a great extent when he or she is going into a private home and representing the hospital, he says. "From what we’re seeing, I don’t think we’re seeing an increase in med mal suits for home care to the same extent that we’re seeing it in nursing homes, but there are some similar issues."

Bedsore problems also may lead to fraud charges, Trosty notes. Some federal attorneys are using bedsores and similar problems as evidence that the patients were not provided quality care.

"They’re saying that if there are bedsores, for instance, the patients did not receive the quality of care that you billed for, and that was fraudulent billing," he says. "Whether that logic stands up to legal challenge, we still have to see. But that strategy began late in 1999, so bedsores are now a red flag for potential fraud litigation."

Reference

1. Bennett RG, O’Sullivan J, DeVito EM, et al. The increasing medical malpractice risk related to pressure ulcers in the United States. J Amer Geriatr Soc 2000; 48:73-81.

Sources

o R. Stephen Trosty, Mutual Insurance Corporation of America, P.O. Box 1471, East Lansing, MI 48826-1471. Telephone: (517) 351-1150.

o Richard Bennett, Johns Hopkins University School of Medicine, 600 N. Wolfe St./Billings 129, Baltimore, MD 21287-1629. Telephone: (410) 955-9213.