A picture is worth a thousand words, but in the volatile world of pressure ulcer lawsuits, a particularly gruesome picture can be worth millions of dollars—regardless of whether the ulcer was preventable.

T

he inclusion of the word still in the title of this article implies that some sort of threshold has been passed by personal injury plaintiffs’ lawyers in the filing of pressure ulcer civil cases—that somehow the law of diminishing returns has set in with regard to the motivation or efficacy of filing such suits. As will be discussed, this is, simply put, not true. These volatile cases, which routinely result in large settlements (see Table 1), will continue to be filed as long as the trial attorneys have gruesome photographs (an example of which is depicted in Figure 1) and there are solvent and fully or partially insured facilities to sue.
       Why is this the case? The answer, unfortunate for the long-term care industry, is because it is easy. Lawsuits against long-term care facilities generally—pressure ulcer cases specifically—are platforms for savvy plaintiffs’ lawyers to exploit the powerful human emotions of guilt, fear, and anger. By exploiting these powerful emotions, the creative lawyer, now playing psychologist and choreographer, subconsciously pulls the individual juror far away from rational thought. Otherwise well-educated and seemingly rational and balanced triers of fact are subconsciously swept away by these overwhelmingly powerful emotions. From the first question in the jury selection procedure to the last word of the closing argument in a pressure ulcer trial, the plaintiffs’ lawyer, worth his salt, is point-blank exploiting these emotions and, in part, popular ignorance about just what a pressure ulcer is. Aiding the lawyer greatly in this effort are wall-sized, blown-up photographs of the hideous, grotesque, and often nauseating stage IV pressure ulcers, which have developed on the resident in question. Except perhaps in personal injury burn cases, never has the adage, “A picture says a thousand words” been more appropriate. With regard to pressure ulcer litigation, perhaps the new saying should be, “A photo is worth a million dollars!”

Table 1

Guilt, Fear, and Anger

       In the past 30-plus years, Woody Allen has entertained millions of moviegoers with many of his films. Often, Allen’s characters are neurotic, obsessive, compulsive, and preoccupied with death. Millions of Americans laugh as Allen’s characters obsess on the “meaning of it all” and one’s own mortality. But is a reason we laugh because we, too, are obsessed with those same questions and issues, at least in our quiet moments? Ironically, there may be a connection between Allen’s characters’ obsession with death and mortality and the trend in the last 15 years of plaintiffs’ personal injury lawyers enjoying unparalleled successes in litigating against long-term care facilities. The emotions of guilt, fear, and anger need to be explored.

Figure 1

       Invariably, the family members responsible for placing “Mom” in a nursing home feel guilty about their decision. After all, is this not the same woman who sacrificed everything so that the kids could go to college? Isn’t this the same woman who, 10 years ago, was vibrant and still active in her community? Is this not the woman whom we swore we would never place in a nursing home? Could we family members have Mom live with one of us and pitch in financially for in-home nursing services? Did we not promise Dad before he died that we would always take care of Mom? How can we place Mom in this facility that has several people babbling incoherently in the dining room at mealtime and smells of urine and other unpleasantries from time to time? Are we not all selfish for placing our fast-paced, successful, and convenient lifestyles ahead of dear old Mom by putting her in a nursing home? How can we live with ourselves on a day-to-day basis knowing in the back of our minds that we “did this” to Mom? The list of questions that must go through the collective minds of family members placing Mom in a nursing home could go on and on. The chances are great that the very same list of questions, all of which naturally evoke guilt, are also in the hearts and minds of prospective jurors—and, for that matter, the trial judge in a particular nursing home case.
       But the emotional roller coaster certainly does not stop here. Next is the concept of “fear.” Death, of course, is one of the few certainties of human existence. All human beings will at some point expire; the only question is, of course, when. Unfortunately, we do not know the answer to that question. We merely have statistical data that tells us the “average” life expectancy of Americans born in 2000 is 77 years, according to the National Center for Health Statistics.¹ We keep ourselves occupied with our day-to-day affairs—jobs, careers, paying bills, providing transportation for kids’ events, watching sporting events, reading compelling literature—and rarely heed to that inner voice that says, “How have you lived your life?” “Is your life worthwhile and complete?” “If you were given a death sentence and had 1 year to live, what specifically would you do differently than you are doing today?”
       This inner voice reminds us not only of our own mortality and the fact that we, too, will die at some point, but also that we may be in a position like “Mom” someday—namely, being placed by our children and grandchildren in a nursing home. Thus, prospective jurors, like all regular people, are subconsciously afraid of their own deaths and how that will come about. They also fear or loathe the possibility that they, too, may be placed into a nursing facility at some point in time.
       The final stop on this excursion into the psychological world is the concept of anger. Fortunately or unfortunately, depending on one’s point of view, the human being is uniquely equipped with the ability to rationalize and lay blame at someone or something else. This concept is continuously demonstrated in the jury verdicts reported in various contexts or types of litigation around the country, where a seeming exercise of common sense and responsibility would indicate that the personal injury plaintiff should not recover. In the context of the topic at hand, the prospective juror in a pressure ulcer case subconsciously feels and hears the aforementioned questions, issues, and voices. He or she sees the grotesque photographs of the resident’s stage IV pressure ulcers and hears the expert testimony of the plaintiff’s wound care specialist and geriatrician to the effect that these wounds were “avoidable” and says to himself, whether he or she realizes it or not, “How could this have happened to the resident? This could be me or my loved one. This makes me mad. I must take my anger out on someone or something…someone must pay for this.”
       When the savvy personal injury lawyer weaves these 3 immensely powerful emotions—guilt, fear, and anger—into a coherent game plan in a pressure ulcer civil case, it is very difficult for the long-term care facility to defend itself. Even more disturbing but true is the fact that it does not take a “top notch” plaintiffs’ attorney to file and prosecute a pressure ulcer case to obtain what would normally be considered a “good” settlement from the plaintiffs’ perspective. The increasing number of high-dollar pressure ulcer verdicts reported around the country beget settlements of these cases, even when the development of the pressure ulcers on the particular resident may truly have been “clinically unavoidable,” the resident in question was in the “dying process” even in the presence of the ulcers, or the resident was, for example, 90-plus years old and had various comorbidities and conditions, any one of which, taken alone, could have caused death.
       The large jury verdicts and settlement awards for pressure ulcers are not limited to the long-term care industry (see Sandifer v. Achebe, Table 1). For instance, a jury awarded $2.5 million to the estate of a hospital patient who developed pressure ulcers during a 14-day stay in the intensive care unit (see Ferrado v. Messersmith, Table 1). The ulcers, in that case, required debridements and surgical closure and were as large as 8 inches in circumference and 4–5 inches deep. Both sides of the patient’s spine were visible.

Follow the Guidelines

       Most of the readers of this article are aware of the fact that the Centers for Medicare and Medicaid Services (CMS) has published new “guidance to surveyors” with regard to Federal Tag 314 (Tag F314), which deals with pressure ulcers. If the long-term care industry and the insurers that cover it are to capably defend themselves in pressure ulcer suits, another type of fear—fear of getting socked with a 7- to 9-digit verdict—must be set aside, at least in the analysis and evaluation phase of the litigation. In conjunction with qualified consulting experts (eg, geriatric nurses, wound care specialists, and geriatricians), the facilities must analyze the Tag F314 factors that the surveyors utilize when investigating whether pressure ulcers that have developed on a particular resident are “avoidable”:
• Did the resident develop a pressure ulcer within the facility, and if yes, did the facility:
1. Evaluate the resident’s clinical condition and pressure ulcer risk factors?
2. Define and implement interventions that are consistent with the resident’s needs, goals, and the recognized standards of practice?
3. Monitor and evaluate the impact of the interventions?
4. Revise the interventions as appropriate?
       On the other hand, the same persons must analyze the “clinically unavoidable” factors:
• If the resident developed a pressure ulcer even though the facility had:
1. Evaluated the resident’s clinical condition and pressure ulcer risk factors
2. Defined and implemented interventions that are consistent with the resident’s needs, goals, and the recognized standards of practice
3. Monitored and evaluated the impact of the interventions
4. Revised approaches as appropriate.
       The new guide to surveyors for Tag F314 also lists the classic “risk factors,” which increase a resident’s susceptibility to develop or to not heal pressure ulcers:
• Impaired or decreased mobility and decreased functional ability
• Comorbid conditions, such as end-stage renal disease, thyroid disease, or diabetes mellitus
• Use of drugs like steroids that may affect wound healing
• Impaired diffuse or localized blood flow, for example, generalized atherosclerosis or lower-extremity arterial insufficiency
• Refusal of some aspects of care and treatment
• Cognitive impairment
• Exposure of skin to urinary and fecal incontinence
• Under-nutrition, malnutrition, and hydration deficits
• A healed ulcer (recurrence or reopening of previously compromised areas).
       Not surprisingly, the facility must competently assess each resident upon admission to the facility. All known physical and psychiatric diagnoses and conditions must be assessed and taken into consideration in formulating a valid care plan for the resident. If a Braden score or other tool for pressure ulcer risk evaluates a particular resident as “high” risk, meetings should be held between facility representatives—director of nursing (DON), medical director, and perhaps the wound care nurse—as well as family members to candidly discuss the very real possibility (or probability) that pressure ulcers could develop on the resident being admitted. Photographs of the various stages of pressure ulcers should be shown to the family members during these discussions. The facility representatives should describe the interventions that their staff members typically use to attempt to prevent the onset or development of pressure ulcers. Facility staff should not guarantee outcomes during these meetings, and the meetings should be memorialized with the family representatives signing off on appropriate documentation summarizing the skin breakdown issues discussed and their understanding of the issues involved.
       Just as importantly, the care plan must be reasonable. Put another way, too many care plans have utopian, totally unrealistic goals for the resident. Nevertheless, personal injury attorneys salivate when they get their hands on an unrealistic but well-intended care plan concerning a nursing home resident who quickly deteriorates in overall condition soon after admission, through no fault of the facility. The care plans should have caveats listed therein to the effect that residents whose skin breakdown was triggered in the assessment process could develop pressure ulcers even with all of the listed interventions being appropriately implemented.

Fighting the Battle

       As in any discussion about topics associated with nursing home litigation, it all starts and ends with charting. Almost all civil cases’ outcomes will depend in large part on the nature and sophistication of the charting on the resident at issue (see Pagan v. Columbus Regional Healthcare Systems and Walker v. Sheridan Healthcare Center, Table 1). If the turning and repositioning, intake and output, medication administration records, weekly pressure ulcer reports, nursing notes, doctors’ orders, updated Minimum Data Set (MDS) assessments, and updated care plans are all or in part deficient or nonexistent, the plaintiffs’ lawyer has another strong adage in his arsenal: “If it wasn’t charted, it didn’t happen.” Or, if it was charted but charted incompetently, he or she would argue, strong inferences can be made about the overall quality of the facility’s staff and, therefore, the overall care given to the resident in question. Consistent education and in-servicing with all staff members needs to be done several times per year with regard to charting. Sometimes the simplest lessons are the hardest to learn.
       If pressure ulcers develop, presumably the family members and the treating physician will be quickly and appropriately notified. If this is a first time development for the resident, he or she will be added to the facility’s weekly pressure ulcer report, which should be kept by the facility’s wound care nurse or DON. All directives from the family physician with regard to treatments, dressings, skin care products, support surfaces, and other ulcer-related therapies should be meticulously recorded. Any and all wound care treatments, be they simplistic or more complicated, should be charted carefully. Any change in the condition or appearance of the wound should be recorded and reported, if significant. Once appropriate notifications have been made, the wound diagnosed, and directions received for treatment, a care plan committee meeting should be held, during which the development of the pressure ulcer (among other matters, of course) should be discussed. There should be a noted review of the interventions previously utilized by the facility (keep in mind the Tag F314 “unavoidability” factors) to prevent pressure ulcers from developing. That review should note any changes or updates in the overall clinical condition of the resident; discuss any “new” risk factors that for whatever reason were not present at the time of admission or the previous care plan meeting; review the interventions previously utilized and confirm that those interventions were in fact appropriately implemented; reevaluate the resident’s needs and goals based on the current information available to the staff; and, if appropriate, revise the interventions and approaches to the resident with regard to preventing future skin breakdown and healing existing breakdown.
       Despite exercising all of the care known to man, pressure ulcers will develop on some nursing home residents. That is simply a fact. If a pressure ulcer lawsuit is filed against a given facility, that facility must get the jump on the plaintiffs’ counsel by undertaking the above analyses as soon as possible. If the facility truly has “dropped the ball” with regard to actual skin breakdown care for a given resident, or if despite providing that care, such care was not appropriately charted, it is much better to know your strengths—and weaknesses—at as early a stage as possible. If the development and deterioration of the resident’s pressure ulcers was truly independent of the care given to the resident by the facility’s staff, and the facility has charted that good care, then steps must be taken by the facility’s counsel to be prepared to educate lay people about what pressure ulcers are, how they develop, how they deteriorate, how they are treated, and so on. This is a difficult but not insurmountable task.
       Knowing the psychological factors behind what typical jurors are likely thinking going into a pressure ulcer civil trial can be of great benefit in defending such a case. Being prepared to squarely address issues including aging, skin breakdown, death, and reasonable family expectations for the nursing home through the defense attorney and his or her qualified expert witnesses is the ticket to bringing some rationality back into a system gone mad.

Helpful Websites

Expert Law: http://www.expertlaw.com/library/exparticles/decubitus_ulcers.html
Arch Insurance Group: http://www.archinsurance.com/media/pdfs/Nursing_Home_Resident_Dies.pdf