Skin breakdown or pressure ulcers are a common topic in geriatric litigation across the country. These cases are not just found in the realm of nursing home litigation. At an increasing rate, plaintiff’s attorneys are filing wound cases against anyone who may have cared for the wound which can include: long term care facilities, assisted- living facilities, hospitals, rehabilitation centers, home health providers and individual practitioners. A common defense is that the wound was unavoidable due to the patient’s preexisting and declining medical condition. The National Pressure Ulcer Advisory Panel convened a consensus conference of the current leaders in the area of wounds and their findings were published this year. The consensus panels’ final opinions support the argument that those of us defending wound-care litigation have been arguing for years, which is that many wounds are simply unavoidable despite good care.
Despite CMS classifying Stage III and Stage IV wounds as never events, that is wounds that should never occur or are reasonably preventable, the consensus panel reached unanimous consensus that not all pressure ulcers are avoidable. Results of the National Pressure Ulcer Advisory Panel Consensus Conference, Ostomy Wound Management, Feb. 2011. Factors that were discussed and associated with unavoidable skin breakdown included: skin failure, Kennedy terminal ulcers, hemodynamic instability or decreased blood perfusion, certain medical devices, critical illness, end of life, and nutritional deficiency, among others. Id. Skin failure was differentiated from a pressure ulcer. The term skin failure refers to underlying skin and tissue damage that occurs at the end stages of life. Hypoperfusion of skin leads to skin failure. Skin failure was reported to occur with “concomitant severe dysfunction or failure of vital organs.” Id. Kennedy terminal ulcers were also discussed and described as “pressure ulcers that present as pear-shaped purple areas of skin, often on the sacrum” seen from 2 days to 6 weeks before death. Id. Each of these types of wounds, skin failure and Kennedy terminal ulcers, were described as unavoidable and caused by the natural end of life changes to skin that can occur even with repositioning, proper nutrition and compliance with the standard of care by staff.
Additionally, the panel discussed and reviewed the impact of poor perfusion on the skin. Typically, plaintiff’s attorneys will argue that it was simple lack of turning that is the sole cause of a pressure ulcer found on a bony prominence. However, there is a plethora of evidence that wounds can develop despite the best of care. There are many reasons for this, but one that the panel discussed was poor perfusion. Hemodynamic instability was defined by the panel as “global or regional perfusion that is not adequate to support normal organ function, including the skin.” Id. In litigating these types of cases, it is critical to search the record for any period of hypotension, bradycardia, or hypoxemia as these may be the true cause of the skin breakdown especially if the patient was already compromised due to age, preexisting illness, and limited mobility.
The panel issued many very interesting consensus statements. Below are a selection of them that are particularly helpful in defending wound cases.
|QUESTION||YES %||NO %|
|Are all pressure ulcers avoidable?||0||100|
|If enough pressure was removed from the external body could the skin always survive?||0||100|
|Are there patient situations that render the pressure ulcer unavoidable?||100||0|
|Should turning every 2 hours be the standard of care?||26||74|
|Can hemodynamic instability that is worsened with physical movement make a pressure ulcer unavoidable?||100||0|
|Are there situations where local tissue perfusion is so poor that any amount of pressure is sufficient to cause an ulcer?||82||18|
|Does the condition called “skin failure” exist?||83||17|
|Are all medical device related pressure ulcers avoidable?||8||92|
Id. at p. 30.
As with all medical malpractice cases, the quality of your experts can make or break your case. The quality of your experts can also profoundly change and shape the defense of your case. Many physicians who do not deal with wounds on a regular basis may simply not be aware of valid defenses in a pressure ulcer case. It is important to retain experts who both deal on a regular basis with a primarily geriatric population and who are knowledgeable of the most up-to-date medical literature regarding wounds. As you can see from the NPAUP consensus panel, those who truly are experts in this area are in agreement that it is not just a defense, but also a medical fact that there are certain wounds that are unavoidable. Identifying those of your wound cases that meet these criteria can dramatically change the value of your case and provide you with a solid causation defense.