Wound Care Litigation: Elements of Malpractice

Deborah Warner, MS, ARNP, LHRM, CWOCN, CCRC, CLC

Relatively few patients or their families initiate medical lawsuits despite adverse events.¹ The threat of litigation, however, may be heightened among those patients with conceivably preventable conditions or untoward incidences. Pressure ulcer development, deterioration, and malnutrition are conditions frequently cited in legal complaints. In these cases the questions arise: Was the pressure ulcer or malnutrition the result of medical or nursing negligence? Did these complications develop despite the provision of standard of care interventions and treatment? Were these complications unavoidable due to the provision of compassionate nonaggressive care? These are key questions that attorneys, claims adjusters, risk managers, and occasionally the courts will consider.

The plaintiff must establish duty, breach of duty, causation, and damages for a claim to be successful. Although not always crystal clear in a review of the medical record, evidence of all elements of malpractice is requisite. For instance, if documentation indicates the healthcare provider did not breach his or her duty and a pressure ulcer developed, the element of breach of duty may be lacking and, therefore, a claim of pressure ulcer development may be difficult to prove. So a pivotal question is, "Can breach of duty be determined?" More fundamentally, what were the caregivers' duties?

Duty is the healthcare provider's obligation to the patient. A legal duty is established whenever a healthcare provider undertakes care or treatment of a patient. Standard of care practices define the duties and obligations assigned to healthcare providers. Society expects healthcare providers to meet reasonable expectations; however, expectations generally are not legal mandates. To that end, it is imperative that healthcare providers understand both standard of care and legal issues related to the management of conditions they are treating. Additionally, an understanding of ethical concerns, end-of-life issues, and quality-of-life questions is paramount when caring for individuals with complex conditions and needs who are at risk for developing conditions, such as a pressure ulcer or malnutrition.

Duty is breached when healthcare providers fail to meet standard of care. Relevant practice standards, guidelines, research, professional publications, and institutional policies and procedures are the basis of standard of care. Federal, state, and local regulations and accreditation agencies afford a foundation to determine breach of duty as well.

It is equally important to understand that standard of care is the degree of skill, care, and judgement used by an ordinary prudent healthcare provider in good standing under comparable circumstances.² To that end, consideration is given to the training and education of the healthcare provider. For instance, nurses and other healthcare providers who have specialized education and credentials in wound care have a heightened duty to assess wounds more thoroughly than an individual with lesser training and experience. Likewise, they also have an expanded duty to recommend and utilize treatment modalities consistent with prevailing standards.

Violation of standard of care may be difficult to determine, since more than one standard of care may be at issue. It is well to note that in any given situation it is not unusual to have more than one reasonable action or perhaps even conflicting standards. Standard of care based on pressure ulcer treatment guidelines and institutional policies prescribes the turning and repositioning of immobilized bed-bound patients.³ On the other hand, a cognitively intact patient with a terminal condition has the right of self determination and to decline a turning schedule.

Certainly it is well recognized that direct patient care is provided by many healthcare disciplines, such as physicians, nurses, dietitians, social workers, and rehabilitation therapists in a variety of settings, and that these providers establish a duty with the patient. But what about the duty of decision makers that impact delivery of care? Do central supply departments and durable medical equipment companies have a duty to supply products healthcare providers judge reasonable and necessary? Do third-party payers have a duty to cover the costs of prescribed products? Do corporate financial and executive officers have a duty to approve all products and equipment? How are their duties defined in a court of law? Only time will tell.

The third element of malpractice is that the breach of duty was the proximate cause of the sustained injury. In other words, the negligence of the healthcare provider led to the stated injury. Causation requires a connection between the unreasonable, careless, or inappropriate care of the healthcare provider and the injury in question. A patient's underlying medical condition may or may not be the cause of an injury, such as malnutrition, dehydration, or a pressure ulcer, rather than a breach in standard of care. Review of the medical record in question and adjunctive records is essential in the analysis of causation.

Damages, the fourth element of malpractice, are injuries that may be of a physical, biological, or emotional nature. Pressure ulcer, fracture, malnutrition, and dehydration are but a few examples of injuries. Damages are defined as the estimated monetary equivalent to compensate the injured person for the loss he or she suffered by the injury. In many lawsuits, the monetary award actually compensates parties other than the person who sustained the alleged or real injury.

Of interest is that altered or obliterated records, unrealistic goals, failure to follow physician's orders, assess and report changes in condition, altered skin integrity, unexplained decline in weight, and missed meals are circumstances that yield higher awards from jurists.⁴

Ninety percent of the time, a case is either won or lost based on the degree of documentation in the medical record.⁵ An intact, consistent medical record that reflects patient diagnosis, condition, assessments, plans of care, treatments and interventions, goals and outcomes, and patient education provides pertinent information. One can appreciate that the medical record is held in high regard; furthermore, thoughtful, thorough documentation is crucial.

It is imperative that healthcare providers understand and define their duty to their patients and the patients' families or guardians. Of equal importance is that healthcare providers are cognizant of the numerous standards of care that govern their practice. It is additionally incumbent upon healthcare practitioners to keep their medical knowledge current and up to date as healthcare practices evolve. With establishment of reasonable goals that are reflected in the plan of care and documented in the medical record, healthcare providers can influence reasonable planned outcomes. Albeit, these outcomes may not be cure but comfort. Regardless, clarity in the plan of care and subsequent actions is instrumental in the provision of adequate care.

References

1. Andrews LB, Stocking C, Krizek T, et al. An alternative strategy for studying adverse events in medical care. Lancet 1997;9048:309–13.
2. Aiken TD. Standards of care. In: Bogart JB (ed). Legal Nurse Consulting: Principles and Practice. Washington, DC: CRC Press, 1998:38.
3. Bergstrom N, Bennett MA, Carlson CE, et al. Clinical Practice Guideline Number 15: Treatment of Pressure Ulcers. Rockville, MD: US Department of Health and Human Services. Public Health Service. Agency for Health Care Policy and Research; 1994. AHCPR Publication 95-0652.
4. Radell RF. Nursing home litigation: An overview of a rapidly evolving area of practice. Mealey's Nursing Home Litigation Report 2001;1(1). Available at: http://www.mealeys.com/nhocom.htlm. Accessed May 19, 2001.
5. Wakefield J, Whitfield P. Preventing and defending lawsuits against elder-care facilities. Medical Interface 1996;December:89–90,110.