Pressure Injury & The Law: The LNC Role
APRIL 18, 2022 | BY KATHLEEN MARTIN, RN, MSN, WCC
Introduction
It is estimated that each year between 1 and 3 million people in the United States develop pressure injuries. In skilled nursing facilities, it is estimated that up to 28% of patients suffer pressure injuries. The numbers increase dramatically with patients in high-risk groups such as quadriplegics suffering pressure ulcer injuries (National Pressure Ulcer Advisory Panel, 2009). Because some pressure injuries may be preventable with proper nursing care, these cases are often ripe for litigation.
The Legal nurse consultant (LNC) can play an invaluable role in reviewing these cases and assisting throughout litigation. The LNC must have an understanding of the federal nursing home regulations, the various practices behind prevention and treatment of pressure injuries, and nursing home documentation. These federal regulations require unique charting that differs from hospital records, including the Minimum Data Sets (MDS) and Resident Assessment Protocols (RAP sheets). In addition, to understanding the medical, nursing, and charting issues, the LNC should have a basic understanding of the legal aspects of a pressure ulcer/injury case.
A pressure injury case, at the most basic level, requires the plaintiff to prove these elements:
1. The health care provider owes a duty of care to the patient.
2. The duty was breached. The provider was negligent or committed malpractice.
3. The patient suffered an injury; and
4. The injury was caused by the provider’s breach of duty.
Federal and State Regulations
Nursing homes are among the most heavily regulated businesses in the country. In 1987, Congress passed the Omnibus Budget and Reconciliation Act (OBRA), also called the Nursing Home Reform Act. The regulations both generally and specifically address a nursing home’s duties to prevent and treat pressure injuries.
The regulations impose a high standard on nursing facilities regarding the prevention and proper treatment of pressure injuries. The facility providers have a duty to ensure:
A resident who enters a facility without pressure injuries does not develop pressure injuries unless the individual’s clinical condition demonstrates that they were unavoidable; and
A resident having pressure injuries receives necessary treatment and services to promote healing, prevent infection and prevent new injuries from developing.
It might be important that when investigating a pressure injury case against a nursing home that the LNC reviews at least three years of surveys by the state’s health department. These surveys may reveal a pattern of neglect. Such surveys, if not provided to the LNC/Expert, may not be used in the report or other testimony developed by the LNC.
The survey reports may be the foundation for building a punitive damage claim. Punitive damages are an additional recovery for the plaintiff. They are intended to punish the defendant for egregious conduct and to deter similar conduct in the future. In many states, to recover punitive damages, the plaintiff must show that the defendant had knowledge of the employee’s pattern of wrongful conduct or management ratified the wrongful conduct. An LNC can assist the lawyer in proving notice by tracking a pattern of preventable and inadequately treated pressure injuries.
Damages in Pressure Ulcer/injury Cases
Like most medical malpractice actions, these cases are expensive to pursue and defend. From the plaintiff’s perspective, the LNC can be very useful in assessing whether there are sufficient damages to warrant pursuing the case. From the defendant’s view, the LNC can refute allegations made if present. It is not uncommon to find that the Plaintiff has made unfounded allegations.
The starting point is assessing the physical harm to the patient. The defendant is liable for all harm proximately caused by the breaches of the standard of care. A stage IV pressure injury is, of course, a serious injury. However, if the patient arrives from the community with a stage III ulcer/injury, the damages are probably insufficient to support an adequate award. This is because the defendant is only responsible for the worsening of the condition. Likewise, damages may be insufficient if the patient recovers from the pressure ulcer/injury promptly without additional hospitalization or surgery. In some cases, damages may not be sufficient if the patient had a very limited life expectancy due to cancer, advanced Alzheimer’s disease, etc. While there is no rule of thumb, if the patient was already on hospice care, damages probably are not sufficient to pursue the case.
Many states now impose caps or limits on recovery, regardless of the severity of the injuries, as part of tort reform. Some states have a global cap limiting the plaintiff’s recovery regardless of the severity of the injury.
For the elderly, financial damage is usually limited to medical bills and funeral expenses. Particularly in those states with caps on non-economic damages, but no cap on economic damages, it is especially important to calculate all related bills. Without substantial medical bills, the case may not make economic sense to pursue.
According to reports from the Center for Medicare and Medicaid Services, the average hospital cost for treating pressure injuries is $43,180.
Non-economic damages for pressure ulcer/injury patients can be tremendous. Pressure injuries are painful in themselves. They increase a patient’s nutritional needs, often require surgical treatment, and may lead to loss of mobility and independence. Proving non-economic damages to skeptical jurors is challenging, especially if the patient is deceased or unable to testify. While lay witnesses can be helpful, an LNC can find the hard data in the medical records to prove these damages. LNCs can develop a detailed flow chart of all complaints of pain, administration of pain meds, and non-verbal signs of pain like grimacing can be used to effectively prove the severity of the injury. Similar charts can graphically show changes in activity level, signs of depression, and other consequences of pressure injuries. As an LNC/Expert, I often develop these types of charts so I can easily analyze the facts and events, as well as to provide the attorney with a comprehensive record analysis and competent conclusion.
If you would like to learn more about how to become an LNC, go to
www.6figurelegalnurse.com for more information and to register on the 6-Figure Legal Nurse online course.
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