Since OBRA 1987, there has been a steady climb in the rate of pressure ulcer litigation in the United States. Fueling the fires are policies from the Centers for Medicare & Medicaid Services (CMS) that hold long-term care facilities (Tag F314) and acute care facilities (HAC/POA) to higher standards for pressure ulcer care than ever before.

Long-Term Living Editor Maureen Hrehocik discussed the impact of pressure ulcer litigation on long-term care with Diane Krasner, PhD, RN, CWCN, CWS, BCLNC, FAAN, a wound and skin care specialist in York, Pennsylvania.

Hrehocik: How has regulatory oversight of pressure ulcers stimulated pressure ulcer litigation?

Dr. Krasner: The increased focus of federal and state regulatory agencies and surveyors on pressure ulcers has been positive in that increased attention is now being paid to an aspect of patient care that was often underappreciated. The 2004 Tag F314 is, in essence, a national standard for pressure ulcer care in long-term care. This document specifically outlines the plan of care that facilities must individualize for any resident with a pressure ulcer or at risk for a pressure ulcer.

The 2005 Deficit Reduction Act (DRA) from Congress introduced hospital-acquired conditions and present-on-admission indicators (HAC/POA) for acute care facilities; Stage 3 and 4 pressure ulcers were identified as POA indicators.

Taken together, these two policies raise the bar across the nation for pressure ulcer prevention and care-a good thing. But for those facilities that do not meet the standard of care for pressure ulcer patients, plaintiffs’ attorneys now have regulatory muscle to support their lawsuits for negligence or wrongful death related to pressure ulcers.

At a glance…

The threat of pressure ulcer litigation can be reduced with a comprehensive interdepartmental approach to prevention and care, according to Dr. Diane Krasner.

Hrehocik: What is the meaning of “avoidable,” “unavoidable,” and “reasonably preventable”?

Dr. Krasner: For long-term care facilities under Tag F314, CMS distinguishes between those pressure ulcers that can be avoided if specific interventions are undertaken and those that happen in spite of appropriate care and are, therefore, unavoidable. Very specific definitions and criteria are given for each of these terms and reasonably prudent facilities will make sure that their pressure ulcer guidelines and documentation specifically address these definitions and criteria. If a facility has guidelines that meet national standards of care for pressure ulcers, if they implement these guidelines and document the care and a resident still gets a pressure ulcer, that ulcer may be deemed “unavoidable.” For example, residents with Skin Changes at Life’s End (SCALE) may develop pressure ulcers as part of the dying process that are unavoidable (for further information on SCALE, see the resources listed at the end of this article).

Acute care facilities must meet a different standard. Pressure ulcers are viewed as “reasonably preventable” according to DRA 2005. There is no “unpreventable” language. And if a Stage 3 or 4 pressure ulcer develops in acute care that was not present on admission, as of October 2008, the facility is not paid by CMS at the higher DRG [drug-related group] rate. One legal spin on this is that if CMS will not pay for a hospital-acquired Stage 3 or 4 pressure ulcer, it never should have happened and, therefore, the patient and his or her family can sue for negligence or wrongful death. To protect themselves, acute care facilities are becoming ever more vigilant in assessing for pressure ulcers that are present on admission and in implementing prevention and early intervention strategies.

Hrehocik: In your opinion, what is the most important thing a facility can do to prevent pressure ulcer litigation?

Dr. Krasner: In my view, having a trained interprofessional wound team that rounds together on a weekly basis, assesses pressure ulcers, and updates the individual wound plan of care regularly is the key to successful pressure ulcer management. Ideally, the team would include the facility medical director, the treatment nurses, the wound specialist, the dietician, and rehab (OT, PT). But whatever mix of dedicated staff a facility can muster, it should make the commitment to pressure ulcer prevention and care.

The wound team should also commit to updating the facility guidelines every two to three years to ensure that they are consistent with clinical practice guidelines, especially the American Medical Directors Association (AMDA) Clinical Practice Guideline: Pressure Ulcers (latest edition 2008) and the soon-to-be-released EPUAP/NPUAP International Clinical Practice Guidelines for Pressure Ulcers. Words such as “never,” “must,” “should,” and “immediately” should be rigorously avoided in a facility’s pressure ulcer guideline.

Hrehocik: What else can facilities do to safeguard themselves from pressure ulcer litigation?

Dr. Krasner: Facilities should ensure that their staff are practicing within their scope of practice. Two common problems are having LPNs/LVNs assessing pressure ulcers and directing care. RNs assess (LPNs/LVNs can only monitor) and MDs direct care. RNs may be doing more extensive debridements than state law allows them to do or ordering prescription medications by protocol (e.g., enzymes) that must be ordered by providers with prescriptive authority (MDs, PAs, NPs) in order to be in compliance with prescribing laws. Clinicians can expose themselves to legal action by accepting responsibilities that exceed their scope of practice. Facilities may be found liable if they routinely require that their staff members practice beyond their scope.

Facilities should engage in preventive legal care by:

• changing “Policies and Procedures” to “Guidelines”;

• making sure that all residents have pressure ulcer risk assessments on admission, quarterly and with MDS changes using a valid and reliable risk assessment tool (e.g., Braden Scale);

• ascertaining that pressure ulcer documentation is timely and complete; and

• demonstrating staff education and competencies related to pressure ulcer prevention and management.

In conclusion, remember this quote from H. L. Menken which aptly reflects pressure ulcer care today:

“For every complex problem, There is a simple solution… And it is wrong.”