Over the past decades, there has been a steady increase in litigation against long-term care facilities and hospitals for the development, progression and management of decubitus ulcers. Recently, there has been an increasing trend to include attending physicians as defendants in these actions.
Claims involving decubitus ulcers can lead to sizable monetary awards, as the image of neglect of a vulnerable elderly patient, combined with often-graphic pictures of the ulcers, can result in significant verdicts from sympathetic jurors. As an example, a jury verdict of $3,992,000 for past and future pain and suffering was upheld by the appellate division in 2014 for a 58-year-old who sustained multiple stage IV decubitus ulcers, numerous surgical debridements, and osteomyelitis leading to a hip dislocation and need for hip replacement surgery (Messina v. Staten Island University Hospital, 2d Dep’t). Thus, the inclusion of an attending physician may provide additional coverage. In many cases, plaintiffs initiate a direct case against the physician, and less frequently, the action is initiated by way of third-party actions by facilities and hospitals seeking contribution from its physicians. The physician can become a defendant in such cases and will have to defend claims involving decubitus ulcers.
Defending a decubitus ulcer case often includes establishing that the patient had risk factors to develop pressure ulcers, that the patient was properly assessed and an appropriate plan of care was developed, and that the plan of care was properly implemented by the staff. Once established, the defense can argue that the decubitus ulcers were unavoidable “despite every reasonable effort to prevent them” (10 NYCRR §415.12(c)). The physician may play a role in establishing and managing the pre-existing risk factors, evaluating the ulcers and developing the plan of care.
The physician may face claims that pre-existing risk factors were not considered and not managed appropriately. The patient’s co-morbidities may have increased the risk of developing decubitus ulcers. It may be claimed that some risk factors, such as peripheral vascular disease, sepsis, malnutrition or dehydration were not managed properly by the physician, and contributed to the development of the ulcers. Obtaining appropriate consultations, laboratory data and imaging can assist the defense of the physician and increase the likelihood of a successful outcome of the litigation.
Proper evaluation and documentation of all decubitus ulcers by the physician assists in demonstrating that he or she was involved in the development and management of the plan of care. A failure of a physician to accurately document the presence of all of the patient’s decubitus ulcers is often viewed poorly by a lay jury. Inconsistencies with the nursing notes are also problematic. Additionally, documentation as to the etiology of the wound can assist in the defense. Often, wounds that are described as “pressure” ulcers may be vascular in nature, lacerations or blisters.
Although long-term care facilities and hospitals have designated policies and procedures regarding accepted modalities for treatment of decubitus ulcers and many have wound care specialists and/or other health care providers who follow such patients on a scheduled basis, the attending physician is often a critical part in the process. Often, orders are required for treatment and a delay or failure to follow the recommendations of the wound care specialist or other health care providers by the physician may be an issue in litigation. A physician’s order is often required for treatments (i.e. enzymatic debriding agents, surgical debridement, etc.), monitoring (i.e. labs, imaging to assess for osteomyelitis, etc.), devices (i.e. Clinitron beds, etc.) and consults.
The ability to demonstrate that the physician appreciated and managed all relevant risk factors, documented a thorough skin assessment, demonstrated involvement with the plan of care and ordered all appropriate treatments, consultations and work-up, increases the likelihood of a successful defense if litigation is initiated.
Rosaleen T. McCrory, Senior Partner and trial attorney at Martin Clearwater & Bell LLP, and Yuko A. Nakahara, Partner at Martin Clearwater & Bell LLP, focus their practice on all aspects of medical malpractice and nursing home defense.