By Allison Clemmey
Health care facilities including hospitals, rehab hospitals, nursing care centers, and other post-acute facilities are subject to litigation when patients develop pressure injuries while under the care of the facility. Lawsuits against these types of facilities are brought through inadequate treatment claims that seek damages for compensatory loss including pain and suffering, increased cost of medical treatment, loss wages, and punitive damages if the conduct warrants it. In November of 2018, House Resolution 1133 proposed World Wide Pressure Injury Prevention Day which is observed on the third Thursday in November to help bring awareness to this challenge in the health care community. The goal of World Wide Pressure Injury Prevention Day is to increase national awareness for pressure injury prevention as well as educate the public on this topic currently affecting over 2 million Americans. Between 2016 and 2017, rates increased by 58.4 percent for hospital-acquired pressure injuries.
The National Pressure Ulcer Advisory Panel (NPUAP) has defined a pressure injury as localized damage to the skin and underlying soft tissue usually over a bony prominence or related to a medical device or other devices. The injury is caused from intense and/or prolonged pressure or pressure due to the combination of friction, the force of rubbing two surfaces against one another and shear, the result of gravity pushing down on the patient’s body and the resistance between the patient and the chair or surface. Other factors that may affect a pressure injury from occurring include microclimate, nutrition, perfusion, co-morbidities, and condition of soft tissue. During the NPUAP 2016 Staging Consensus Conference held April 8-9 in Chicago, Illinois, there was an update and adoption of the staging system used to determine the level of severity for a pressure injury. Stage 1 Pressure Injury is intact skin with a confined area of non-blanchable erythema, which may occur before visual changes take place. Stage 2 is when partial-thickness skin loss occurs as well as exposed dermis, dermis is dead tissue that sheds or falls off from healthy skin. The wound bed is viable, pink or red, moist, and may also appear as an intact or ruptured serum-filled blister. A common cause is from an adverse microclimate and shear in the skin over the pelvis and shear in the heel. Stage 3 is when there is full-thickness skin loss where fat is visible in the ulcer and granulation tissue as well as the edges of the wound are rounded appearing on the injury. Additional components of the wound include slough (dead tissue, usually cream or yellow in color) and eschar (dry, black, hard necrotic tissue) both being visible as well as undermining and tunneling may be present. Stage 4 occurs when there is full-thickness skin and tissue loss with exposed or directly palpable fascia, muscle, tendon, ligament, cartilage, or bone in the ulcer is present. Slough and eschar may be visible and often the wound has rolled edges, undermining, and tunneling in the wound bed. An unstageable pressure injury results when the wound bed is obscured by slough or eschar not allowing a clinician to confirm the full-thickness and tissue loss to determine the extent of the tissue damage within the wound bed. Deep-tissue pressure injuries are intact or non-intact skin with a confused area of persistent non-blanchable deep red, maroon, purple discoloration or epidermal separation revealing a dark wound bed or blood-filled blister. Clinicians use the staging system to help diagnosis the level of severity of the ulcer. The level of severity then determines the level of care the patient needs to prevent the condition from getting worse.
In 2013 the Nationality Quality Forum (NQF) declared pressure injuries, specifically stage 3 and stage 4, a “never event” which is a serious or costly error in the provision of the health care services that should never happen. Despite pressure injuries being categorized under the never event umbrella they are the fourth leading preventable error in the United States. Due to the high susceptibility of a pressure injury occurring upon admission, if a patient is at risk of developing a pressure injury, the clinicians must conduct a skin integrity assessment to take the proper preventative measures. In 2006, United States Congress passed the Deficit Reduction Act of 2005 which gave Medicare and Medicaid Services the authority to adjust hospital payments to encourage prevention of hospital-acquired conditions like pressure injuries. Additionally, in June of 2007 the Medicare and Medicaid Services proposed to deny Medicare payment for costly and sometimes preventable hospital-acquired conditions which included stage 3 and stage 4 pressure injuries. States have also enacted specific legislation to address these issues requiring all health providers including hospitals and post-acute facilities to take preventative action to avoid patients developing pressure injuries. In the case of an event, this would mean to properly document the injuries. Documentation of pressure injuries occurring at health care facilities can be found at Medicare.gov. The information on this website helps to alert the public of how frequently different health care facilities have patients experiencing these types of injuries as the facilities are mandated to report.
If a patient has certain pre-existing conditions such as smoking, diabetes, low blood pressure, elevated skin temperature, circulatory deformities, trauma, or obesity (non-exclusive list), they increase the risk of a patient developing a pressure injury. When holding a facility liable for the occurrence of a pressure injury, facilities are quick to point the finger. Each facility throughout the care continuum regularly blames another facility for the injury. For example, if a patient admitted to the hospital has one of the before mentioned pre-existing conditions the hospital may argue that the pressure injury is unavoidable due to the irreversible or unmodifiable comorbidities and risk factors. This may prompt the hospital to argue they should not be liable for the pressure injury because of a break in the chain of causation. Even if preventative measures were properly taken to prevent a pressure injury from occurring, the likelihood of one occurring based on the intervening factors is just too far high. On the contrary, if the facility the patient is admitted to does not have the proper preventative protocols in place, necessary training for staff, or proper documentation requirements this puts the facility in a very vulnerable position. The facility would then be responsible for the patient developing a pressure injury, which also may cost the facility an immense amount of money from compensatory and/or punitive damages. Additionally, there is a plethora of evidence to support that pressure injuries are avoidable occurrences. This evidence includes the skin integrity assessment, regular inspection, checks, and changes every two hours to ensure the redistribution of pressure of the patient, prevention strategies for device related pressure injuries, pressure redistributing equipment, and special care for pre and post-operative patients. While the patient is their care, health care facilities should be liable for the causation of a pressure injury because a patient developing a pressure injury has severe consequences.
There are a number of tools to help educate facilities to the dangers of pressure injuries and how to help promote the need for prevention. State and congressional legislation should continue to enact laws holding facilities liable; however, it is also the job of the judiciary to continue to impose liability by require damages be paid for the patient and/or family if a pressure injury occurs. If the legislative and judiciary continue to hold these facilities liable, then the facilities charged with these neglected actions will be put on a pedestal as an example to other facilities. There are legal and therefore monetary consequences when you violate the law and put a patient in danger of obtaining an otherwise preventable pressure injury.
Facilities that ignore legislation or lack proper wound-care protocols to prevent pressure injuries, open themselves up to litigation from the patient or their family. In Philadelphia a seventy-three-year-old man was admitted to a hospital and later discharged to a nursing home where he developed a sacral ulcer. The facility had failed to appropriately treat the ulcer, which led to its progression. The man won $6 million in damages against the nursing home and hospital. This figure included punitive damages of $3.5 million against the nursing home and $1.5 million against the hospital. In Arizona a jury awarded $6.5 million, including punitive damages, to the estate of a sixty-three-year-old paraplegic man against a hospital. The man developed a pressure ulcer in his sacrum that progressed into Stage III, resulting in him suffering malnutrition and loosing forty-five pounds. The estate argued the pressure injury, which became infected, placed him in an irreversible state of deterioration. Most notably, Arizona awarded the estate of an eighty-six-year-old woman $16.7 million in punitive damages and $2.5 million in compensatory damages against a skilled nursing home who consciously ignored procedures intended to prevent pressure ulcers. In addition, they intentionally fabricated medical records to cover up their neglect. To help ensure health care facilities similar liability, preventative procedures should be put in place. Health care facilities need to employ proper skin integrity examinations by specialized wound care nurses. Specific wound care policy is also needed that details the responsibilities of clinicians working with patients who are susceptible or have pressure injuries. Most importantly there needs to be staff education on wound care policy and the repercussions of not abiding to the policy.
Due to the recent emphasis from World Wide Pressure Injury Prevention Day, the health care market is being scrutinized more than ever for its role in patients developing pressure injuries that lead to immense pain, suffering, and even death. The law needs to continue to hold facilities liable to emphasize these injuries are not just categorized as never events. Pressure injuries truly become never events to ensure patients are receiving the proper health care when admitted to hospitals, rehab facilities, and post-acute facilities.
Allison Clemmey is a 3L evening student at Suffolk University Law School. Prior to Suffolk, Allison earned a degree in marketing and minored in legal studies at Quinnipiac University and was a member of Alpha Delta Pi sorority. Allison works full time as an account manager at Cardinal Health selling into the post-acute market covering the New England territory. Upon graduation Allison initially hopes to clerk to help prepare as a future litigator and is interested in pursuing white collar criminal law.
Sources Links
http://www.npuap.org/resources/educational-and-clinical-resources/npuap-pressure-injury-stages/
http://www.npuap.org/wp-content/uploads/2014/03/NPUAP-F-tag-final-March-2014.pdf