Scales of Justice Statue

Avoiding Wound Litigation

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Pressure injuries are the most expensive litigation in long-term care and on average these cases cost $2,500 per occupied bed per year. Both the number of cases and the cost are increasing and in the past ten years lawsuits against nursing facilities have doubled and the expenses of these suits have dramatically increased.  Second only to litigation for falls, wounds account for 25% of all litigation in long-term care (skilled nursing and assisted living facilities). Specifically, pressure ulcers/injuries and lower extremity wounds are the main source of litigation. An evidence based, compassionate, and timely approach to these wounds is critical to reduce or limit litigation.

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The best approach to wound care uses a comprehensive wound care team led by a physician wound specialist and together this team reduces the risk of litigation. Having a certified wound care nurse as part of the team is integral to its success. Improved clinical outcomes start with knowledge and education and it is important that these exists at all levels from physician to family. Early intervention, prevention and proper documentation are essential.

Physicians who speak with families and with patients to set reasonable expectations and answer questions can make the difference between an angry family that sues and a family that understands that the wound occurred because the skin failed. The understanding of the skin being a distinct organ is often unrecognized and the fact that the skin can “fail” is often poorly understood. The Centers for Medicare and Medicaid Services (CMS) has guidelines that help to establish if a wound developed or deteriorated because it could have been avoided, or if the occurrence was unavoidable. CMS states: “Unavoidable means that the resident developed a pressure ulcer/injury even though the facility had evaluated the resident’s clinical condition and risk factors; defined and implemented interventions that are consistent with resident needs, goals, and professional standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate” CMS State Operations Manual Appendix PP. What does that mean exactly? It tells us that development of pressure injures should not occur and that existing wounds can be prevented from getting worse if proper assessment, practices, and interventions are followed. It also says that despite every correct step being taken wounds can and do still occur. CMS requires that residents in long-term care do not develop pressure injuries unless clinically unavoidable. Whether a wound is avoidable or unavoidable is a determination made upon review of the care that has been provided to the patient and the documentation of that care. If just one of the requirements in determining “unavoidable” is not met the wound is considered “avoidable”. Facilities create an increased risk of litigation for themselves by inadequate care and in many cases, they create an even higher risk by improper documentation of wounds as “unavoidable” . 

Unavoidable or avoidable is determined not at the bedside and it is not a determination made by a physician just stating that a wound is unavoidable. Rather it is a systematic review of the care provided, the goals, the intervention, and the discussions that have been documented against the CMS requirements. Only if it is determined that all requirements have been met and despite these the wound occurred is it an unavoidable wound. At a minimum CMS requires that facilities provide: Services consistent with professional standards of practice to: promote the prevention of pressure ulcer/injury development; promote the healing of existing pressure ulcers/injuries (including prevention of infection to the extent possible); and prevent development of additional pressure ulcer/injury”. A physician with expertise in wound care is critical to properly evaluating the wound, determining patient risk factors, documenting the patient’s needs, goals, determining best treatment, promoting healing by surgically debriding necrosis or biofilm, and monitoring and adjusting interventions as required. 

Technology such as Vohra’s augmented intelligence tool that predicts how long a wound will take to heal can also be integral to reducing litigation risk. This is a powerful resource for use with families. Our physicians utilize this tool when they speak with families to discuss and demonstrate how long similar wounds take to heal with proper care and interventions. The risk of litigation rises when the family does not understand the wound and when a conversation and discussion to set reasonable expectations did not occur very earlier after the admission. In fact, the chance of a lawsuit is highest in patients who have a very short length of stay in the facility. Modern wound care and a wound care physician who visits the facility every week can ensure early family meetings and reasonable expectations are established and as a result reduced litigation and liability exposure occurs. Wound physicians who lead a team approach to wound care help ensure facilities meet the professional standards of practice that CMS and families expect and help reduce the likelihood of litigation.     

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