Tell the Truth

Honest documentation key to defense in wound care & elder abuse lawsuits

by Gretchen Henkel

PHOENIX--No one working in the skilled nursing industry is immune from being named in a lawsuit, asserted Leila G. Knox, RN, BSN, MA, CWOCN, and Stephen M. Grossman, MD, CMD, during a standing-room only session ("Clinical and Legal Aspects of Wound Care and Pressure Ulcers") at the 2004 AMDA Annual Symposium in March.

Both Knox and Dr. Grossman work as expert defense witnesses in nursing home litigation cases. Knox is a wound ostomy and continence specialist and nursing services administrator of the 180-bed Horizon Health Subacute Center in Fresno, Calif. Dr. Grossman owns a multi-specialty practice that specializes in skilled nursing facility services in San Joaquin Valley, Calif.

Speaking from their experience in the litigation trenches, Knox and Dr. Grossman corroborated national statistics:

• Nursing home lawsuits are becoming the fastest growing segment of health-care litigation;
• Medical directors are increasingly named as defendants--even if they are not the resident's attending physician; and
• Pressure ulcers are edging to the top of the claims list, as plaintiff attorneys become more conversant with quality indicators.

As an example of the latter trend, Knox noted that at a recent National Pressure Ulcer Advisory Panel (NPUAP) workshop on pressure ulcers, 83 of the 175 attendees were attorneys. "I can tell you that lawyers are very involved and wanting to know about pressure ulcers," she said. (See "Pressure Ulcers Statistics," at right.)

"We always consider you doctors as the captain of the ship," she continued. "When the facility gets sued, you may become the captain of a sinking ship. Hopefully, your ship will not sink."

Disturbing Trends

Citing his courtroom experiences and increased requests for his services as an expert witness, Dr. Grossman believes that plaintiff attorneys are on the attack. He displayed one newspaper ad placed by a Modesto, Calif., attorney as typical.

The headline read, "I have discovered elder abuse in our community." The text of the ad listed several indicators, including unexplained bruises, skin care problems, and weight loss, which "may represent elder abuse."

Dr. Grossman called the attorney's number posing as the adult child of a nursing home resident. "I asked the guy, 'What do I do? My mom is 110 years old, she's on Coumadin, she gets these bruises--what do you think?'"

The attorney responded, "There's no question--it probably is elder abuse." At this point in the presentation, the attendees burst into laughter.

Then Dr. Grossman became more serious. "This is no joke, guys. These [plaintiffs' attorneys] are out there, and they're fishing," he admonished, "because all it takes is a 26-page allegation to be filed, and they can get a settlement from $50,000 to $300,000 for that single document" even if the case never goes to trial.

Knox noted that although most states have mandated caps for damages in civil cases (California's is $250,000), many attorneys now include pressure ulcers as part of elder abuse complaints because there is no cap on damages in criminal cases.

Medical directors need to be aware of plaintiff tactics, said Dr. Grossman, "because these [elder abuse] lawsuits are not based on true malpractice issues--it's all emotional."

A Strong Defense

As with any other aspect of resident care, when it comes to wound and pressure ulcer care one key to reducing liability is to document, document, document. This applies to a facility's full range of protocols--from instituting proper procedures for pressure ulcer assessment, prevention, and treatment to ensuring that staff continually follow procedure and document steps taken to following conservative staging techniques to documenting when pressure ulcers are unavoidable.

"Don't lie, just be truthful and document--that is your best defense," reiterated Dr. Grossman. Nursing staff in his facilities initially resisted documenting residents' weight loss and skin tears. Their reason: "[The Department of Health Services] will see it; this will just call it to their attention."

Dr. Grossman convinced his staff that surveyors will find such conditions, anyway, and that the purpose of documenting the resident's condition is to bring it to the physician's attention.

Avoiding lawsuits and launching a successful defense start with awareness, said Knox. "I know most of you are responsible for a lot of residents," she said. "You rely on the nursing staff to inform you about what is happening with those residents. Most facilities--probably 99% of them--have some sort of wound program.

The question is: does the facility follow its own program? If you are the medical director of that facility, you have the responsibility to make sure the administration is following their own program--doing it completely and doing it the right way."

Case Files

From personal experience, Dr. Grossman has seen instances where incomplete documentation damaged a facility's defense against claims of criminal neglect. He discussed one example of a PRN medication sheet from a settled case to illustrate his point.

The record revealed that one resident with pressure ulcers had had pain assessed at 10 out of 10. At a subsequent assessment, the pain had only improved to six out of 10. "I tell the nurses [in my facilities], or the MDS people who are instructing the nurses, that if they cannot bring a resident's pain down to zero, there had better be a nursing note explaining why not," he advised.

Although no course of action is foolproof in preventing lawsuits, truthful documentation is akin to introducing what Dr. Grossman calls "speed bumps." That is, diligent medical record and care-plan notations can prove the facility and its providers are constantly monitoring and aware of the resident's condition. In this way, they can slow the momentum of a plaintiff's charges in court.

Guideline Updates

During her portion of the session, Knox summarized the major tenets of good wound care assessment, staging, and treatment. Guidelines generated by the former Agency for Health Care Policy and Research (now the Agency for Healthcare Quality and Research) remain the gold standard in wound care. (See "Wound Care Tools and Resources," below.)

She drew attention to recent NPUAP refinements of Stage I pressure ulcer definitions. Those include signs of ulcers in those with darkly pigmented skin (persistent red, blue, or purple tones) that differentiate them from signs of early pressure ulcers in light-skinned residents. To the standard pressure ulcer assessment, staging and treatment basics, Knox added the following caveats:

• Don't forget to listen to the resident's complaints of pain; and
• Ensure that front-line nursing staff use identical measuring techniques (i.e., measuring the wound from head to toe, left to right, in centimeters, and so on).

Wound healing can be a time-consuming and expensive process. The first phase of healing (inflammatory) may take four to six days; the next phase (proliferative) can take four to 24 days; and the maturation phase can take 21 days to two years and is not complete until scarring occurs. Even with scarring, the skin will only regain 70% to 80% of its former strength, and it's very easy to reopen such wounds.

Err on Side of Caution

Knox clarified contradictions between the MDS 2.0, which mandates reverse staging of pressure ulcers, and the NPUAP guidelines, which do not recommend the practice.

Following NPUAP guidelines, if a pressure ulcer is initially staged as a Stage IV, "it remains a Stage IV forever--even if it is healed," according to Knox. In the latter case, the wound should then be noted in the record as a "healed Stage IV."

According to the NPUAP the rationale for this approach is that pressure ulcers heal to progressively more shallow depths. Lost muscle, subcutaneous fat, or dermis may not be replaced, and the ulcer may be filled instead with scar tissue composed mostly of endothelial cells, fibroblasts, collagen, and extra-cellular matrix.

If a facility chooses not to reverse-stage, it should have written policy and procedure language that clarifies its staging protocol. Meaning that although reverse staging is required by MDS 2.0, wounds will not be downgraded to a lesser stage because NPUAP guidelines prohibit that practice.

Additional Assessment & Documentation

In Knox's facility, which has successfully defended two lawsuits citing pressure ulcers, risk assessments are performed using the Braden Risk Assessment Scale. Residents are assessed upon admission and at regular intervals for the MDS-mandated care plan updates. Wounds are assessed weekly to allow staff to update physicians if there is no improvement.

In addition, Horizon Health uses photographs to document wound status and healing. Each photograph taken of the resident's pressure ulcer is noted with the medical record number, date, and stage of the ulcer.

Although there are pros and cons about taking photographs (pro because it helps document treatment progress; con because the pictures can be used during trial to influence jurors), Knox believes the practice provides valuable backup documentation.

Nursing staff members at Horizon Health also perform skin assessments whenever a resident stays in the ER for more than four hours.

"Remember, if there is pressure for up to an hour, you will have erythema," she said. "If the resident's position is changed, hopefully that erythema goes away if the resident is healthy. Now, if the resident is in the same position for more than two hours, you start having problems. A necrosis could develop after the resident has been in one position for more than six hours."

The practice of reassessment and photographic documentation has averted at least one lawsuit when facility nursing staff could demonstrate to a family member that his mother's pressure ulcer (stable at the time of her transfer to the hospital) had worsened during her time in the ER and ICU.

Playing on Emotions

Practicing defensive medicine has become necessary because of plaintiff attorney tactics. "For those of you who have made it to trial, you know that they take pictures like these [of residents with pressure ulcers] and blow them up and put them in front of the jury," said Dr. Grossman. "Plaintiffs' attorneys can pick any picture they want to use. It's up to the defense side to say, 'That's a bad picture.'"

During trials alleging criminal neglect, outcomes hinge on the power to sway the jury, which is instructed to pick a side. Often in such cases, said Dr. Grossman, the situation boils down to who has the most convincing story, and thorough medical records can establish defense credibility.

In his efforts to avert potential lawsuits, Dr. Grossman also conducts inservices with local law enforcement and FBI agents in his area. "I explain to them what is happening to the body at this point in life, so that when they go into a facility to investigate a complaint, they don't have a chip on their shoulder.

"The same is true for ambulance companies--those are a nidus for lawsuits because of what they say to family members. I tell EMS that the expressions on their faces and what they say to families is very important," he continued. "I emphasize that they should be truthful and show empathy to the family. I tell them to say to the family, 'I can see where this would upset you; let me look into it; let me call the nurse or the DON.' A lot of times this will stop a lawsuit from occurring."

Conclusion

Honest documentation of appropriate care is a good way to reduce liability when addressing wound care and healing, emphasized both presenters. Without proper documentation, defense of even appropriate medical management becomes more difficult.

Contributing Writer Gretchen Henkel has covered long-term care issues in Caring for the past five years.

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