With litigation related to wound and skin care on the rise, long-term care facilities must implement conscientious processes to protect themselves.

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o matter what your specialty or which setting you practice in, wound and skin care litigation is on the rise, and protecting yourself from legal action should be an important professional priority. This article will address ways to safeguard your wound and skin care practice by routinely implementing actions that will cover you should a case be brought against you, your facility, or your employer. My “10 Tips to Keep You Safe Legally with Wound and Skin Care” will be introduced and discussed in this article.

Our Litigious World

       The wound and skin care world has watched the rate of wound- and skin-related lawsuits rise from the occasional, rare occurrence in the 1970s to the commonplace event it has become today. The chances are likely that if you stay in wound and skin care over the next decade you will be involved in legal action, either as a witness, a deponent, or a defendant. You may be asked to serve as an expert witness by those who respect and value your clinical expertise and find themselves involved in a lawsuit.
       Wound- and skin-related lawsuits have significant financial ramifications for organizations, since settlements can easily exceed $50,000. Many wound care experts say that the average settlement for a wound case is around $350,000. If a case goes to trial, jury awards often reach the millions. That is why the goal of many litigators is settlement, since going to trial is labor-intensive and expensive and there is no guarantee for either the plaintiff or the defendant of how a jury will decide on a particular case.

Take-Home Messages for Practice

       I have served as an expert witness since 1989 and as a board-certified legal nurse (BCLN) consultant since May of 2006. My experience has taught me that many cases can be avoided by careful attention to three simple principles, which are this article’s key take-home messages:
• Always develop a wound/skin plan of care that is individualized and consistent with the patient’s overall plan of care
• Communicate the wound/skin plan of care clearly and in a timely manner to the patient, family and/or healthcare power of attorney, and relevant members of the patient’s healthcare team
• Always take the time to document the plan of care, interventions, changes in the wound/ skin condition, and required changes in the plan of care.

Table 1

       (See Table 1 for a list the “10 Tips” designed to remind you of the critical process steps that you should address regularly in order to legally safeguard your practice and reduce your exposure.)
       If you consistently practice a certain way, you can rely on that regularity when you have to defend yourself. This is particularly important because it is often two or three years before you even become aware that a case has been brought against you or your facility. All you may have to fall back on is the written record and your usual practice patterns. You may not remember the patient or the patient’s wound, but from your documentation (if it is carefully crafted to reflect your usual practice patterns), you should be able to uncover a great deal of information. For example, if you documented that a trochanteric pressure ulcer is “5 x 3 cm, unstageable, yellow slough,” you will know (because you always chart that way) that the depth could not be determined due to necrotic tissue in the wound bed. If you documented “No clinical s/s of infection,” you could be certain that you did not assess redness, swelling, and warmth or determine that the patient was experiencing pain. In my own practice as a wound, ostomy, and continence nurse (WOCN), I routinely recommend podiatry or infectious disease consultation for all diabetic foot wounds with clinical signs of infection, no matter what the admitting diagnosis, patient demographics, or comorbidities are. I know that I have an established practice pattern that I believe meets national standards of practice and is defensible. I have developed a systematic approach, the “10 Tips” to be described in detail below, for charting my consultations.

TIP #1: Assessment and Diagnoses
       Describe what you see as specifically as possible; be cautious with medical diagnoses unless you are a wound or skin specialist or physician.
       I always address the following areas for each wound or skin consultation:
• Who requested the consult
• What was the specified reason for the consult
• Assessment (wound/skin and the whole patient)
• Recommendations
• Closing sentences as follows: “Thank you for the opportunity to consult on this patient. Please contact the Wound, Ostomy, and Continence Service (Pager 111) if further recommendations are required.”
       The closing sentences put the healthcare team on notice that I do not routinely follow up on consultations, so that if there is a change in condition the onus is on the healthcare team to order another WOCN consultation.
       A detailed (but not excessively so) description of the wound or skin problem is vital. At a minimum, the exact location, size, and color of the wound or skin condition should be addressed. It is prudent to state whether clinical signs or symptoms of infection are present and whether the patient is experiencing pain.
       Wound specialists and physicians are well within the scope of their practice to state an etiology or diagnosis or differential diagnosis. Generalist nurses and therapists should be cautious if a wound type has not yet been determined. It is better to say “lower leg ulcer” than label it a venous ulcer when testing has not been done (eg, it could be venous with an arterial component or some completely different etiology, such as Pyoderma gangrenosum). In the case of an eschar of the heel, it is more prudent to state “eschar of the heel” rather than “pressure ulcer” or “diabetic foot ulcer” or “burn” if the exact cause has not yet been determined.

Tip #2: Admission and Discharge Documentation
       Be especially vigilant in your admission and discharge documentation of wound and skin conditions—no matter what your specialty. Carefully describe the wound or skin condition, including dimensions, whenever possible.
       So many of the cases I have reviewed over the last several years have been problematic due to poor admission and/or discharge documentation. For example, if a patient is admitted to a facility with a pressure ulcer but there is no documentation within 24 hours of admission, it is considered a facility-acquired or nosocomial pressure ulcer by most regulators. Not only does this negatively impact the facility, but should the patient have a bad outcome and legal action be brought against the facility, the delay in assessment and development of an individualized plan of care shouts “negligence” to a jury. Careful admission and discharge assessment and documentation of wound and skin conditions at the point of admission at a facility (eg, emergency room, operating room, nursing unit) is the best insurance a facility can have for the patient admitted with a wound or skin condition.

Tip #3: Referrals
       If a wound or skin condition warrants referral to a specialist, obtain the referral in the most expedient manner (or recommend for the referral to be obtained). Urgent referrals should be communicated directly to the healthcare professional involved.
       Wound and skin conditions vary greatly in their urgency. General practitioners often miss urgent diagnoses (eg, infected diabetic foot ulcer, necrotizing fasciitis, localized wound infections becoming systemic), resulting in serious risk to the patient and exposure for the facility. It is important to carefully assess and triage patients, and if urgent diagnoses are suspected or exist, urgent referrals should be made and communicated as such. In these situations, sending electronic or faxed consultations is often not enough—direct practitioner-to-practitioner communication is usually required and may be held as the standard in a court of law.

Tip #4: Wound/Skin Plan of Care
       Wound and skin interventions must be consistent with the overall plan of care for the patient. Determine if the wound or skin care is to be aggressive, for maintenance, or palliative before initiating treatment whenever possible.
       This determination should be made before initiating treatments whenever possible. For example, for a pressure ulcer of the heel covered with eschar, aggressive treatment might be surgical debridement; maintenance treatment might be cleansing with normal saline, covering with a foam dressing and monitoring daily; and palliative treatment might be swabbing with a topical antimicrobial solution and monitoring daily. Which of these options are chosen for a patient depends on his or her overall plan of care, and it is usually a decision for the physician or healthcare team.
       Holistic care for patients with wound and skin conditions requires that interventions be consistent with the patient’s overall plan of care. This may seem obvious, but all too often one sees topical treatments ordered or goals of care written that are unrealistic or inappropriate for the patient’s condition. For example, in a recent case that I reviewed, the nursing goal was to “heal a wound” in a dying patient. This sets up unrealistic expectations for patients and families and creates potential liability for the healthcare team. To avoid these situations, it is important to ask the following four questions and use the answers to guide the development of the wound/skin plan of care and treatment options:
1. What is the etiology of the wound/skin condition (Where is it located?)
2. Is it healable or nonhealable?
3. It is infected or not?
4. Is the plan of care aggressive, for maintenance, or palliative?
       Only with the answers to these four questions and a holistic assessment of the patient and the wound can an individualized plan of care be developed. Some of the most commonly seen mistakes include:
• The goal of healing a wound in a patient whose wound will never heal due to comorbidities
• Aggressive topical wound treatments that inflict pain and suffering on dying patients
• Appropriate maintenance care or palliative care that is not documented as such or discussed as such with the patient and/or family members.

TIP #5: Special Treatments
       Use caution when initiating special treatments if complete testing has not been done and contraindications have not been ruled out.
       Many special treatments (eg, negative wound pressure therapy [NPWT], electrical stimulation, and hyperbaric oxygen) have contraindications or precautions. While there is often a tendency to rush to implement care, it is important for complete testing to be done if warranted to rule out contraindications or precautions before initiating therapy. If you have good reason to feel uncomfortable about the off-label use of a special treatment, report your concerns to your manager and document them.

TIP #6: Documenting Interventions
       Carefully document your interventions and the responses to your interventions. If you have notified another member of the inter-professional team, document the date and time and what was communicated.
       The more specific you can make your documentation, the better. When your rationale for deciding on alternatives is significant, include it in your note. Be sure to follow usual safe practices regarding “Do Not Use” abbreviations, correcting errors, and late-entry charting.

Table 2

TIP #7: Changing the Plan of Care
       Change your plan of care as the patient and the wound or skin condition change and document your rationale for the change, obtaining orders as needed.
       Best practices and today’s standards of care for wound care require that interventions change as the wound changes. It is no longer appropriate to just keep providing the same treatment if the wound is not progressing or if it is deteriorating. Interventions should carefully match changes in wound status and expert clinicians will not only have a rationale for the interventions they switch to but will discuss that rationale in their documentation so that all members of the healthcare team are privy to this information.

TIP #8: Unavoidable Pressure Ulcers
       Carefully discuss “unavoidable” pressure ulcers in the patient record.
       Following the National Pressure Ulcer Advisory Panel (NPUAP) recommendations and Centers for Medicare & Medicaid Services (CMS) verbiage for avoidable and unavoidable pressure ulcers is reasonably prudent practice. Some organizations have developed forms that are completed when an unavoidable pressure ulcer develops. Such forms include check-offs for specifying an individual patient’s comorbidities and contributing factors and are often signed by two or more members of the healthcare team. Also included are the interventions that were taken to prevent a pressure ulcer from occurring and the newly revised plan of care since the ulcer developed. Such documentation serves to protect the facility and demonstrate that everything possible was done to prevent an ulcer that turned out to be unavoidable.

Tip #9: Red Flags
       When you see a red flag related to wound or skin conditions, notify the appropriate manager or risk manager.
       Discuss with your manager or risk manager what details they need to know and in which format. Most organizations prefer the heads up on potential litigation, rather than finding out when legal papers are served. Also, there is an opportunity for an ombudsman or other patient advocate to intervene in a potentially litigious situation.

Tip #10: Personal Liability Insurance
       Maintain your own liability insurance policy. Be sure that it covers you for state practice board action.
       Employers will often say that having your own liability insurance is not necessary. Attorneys and legal experts will often recommend the opposite: to protect yourself in case you and your employer are not in agreement in a legal case in which you are both named as defendants. If you have a private practice or if you work as an agency nurse or independent contractor, liability insurance is not an option.