Our claims team is prevailing when defending decubitus ulcer malpractice claims.
The history of decubitus ulcer litigation is an interesting one that is mired in misunderstanding. Unfortunately, at the turn of the millennium, some well-intentioned quality and safety organizations coined the term ‘never event’ to denote adverse events that should “never” occur in the delivery of healthcare. Over time this term came to be watered-down, but some organizations held on to the name and included certain types of pressure ulcers in this category.
According to EmPRO’s Medical Director Dr. Philip Robbins, “Pressure ulcers are often due to failure of the skin (like any other organ that fails with age) and can often not be prevented despite the best of care.”
Tragically for institutions working their hardest to prevent pressure ulcers, this misunderstanding has emboldened plaintiff law firms and fueled patient and family outrage. Many malpractice carriers have bought into the myth that decubitus ulcers were always associated with clinical error, thereby encouraging the proliferation of malpractice allegations in pressure ulcer cases.
EmPRO fully understands that, as with other adverse events, pressure ulcers do not necessarily imply substandard care and that each case needs to be thoroughly evaluated on a case by case basis. Our claims team has, therefore, taken a more assertive posture when defending decubitus ulcer malpractice claims. The strategy is paying off as our defense team has secured a defense verdict in every single pressure ulcer malpractice case taken to a jury in the past year.
Let’s consider some examples of our success…
A 69-year old male with an extensive past medical history including congestive heart failure, diabetes, gait instability due to spinal stenosis, peripheral neuropathy, peripheral vascular disease, and bipolar disorder was transferred from a hospital to a nursing home on several occasions. During his visits to the nursing facility, the patient was physically and verbally abusive to both staff and other patients. He refused medications and psychiatry consultations. Every measure was taken to prevent the development of a pressure ulcer including proper nutrition and repositioning the patient every 2 hours. PeriGuard was used as well as a pressure-relieving mattress. Despite these efforts the patient developed pressure ulcers which progressed to stage 4 ulcers. The patient subsequently became septic and died. The cause of the infection was noted to be attributable to his decubitus ulcer. The patient’s daughter sued the physician and the facility involved in the patient’s care.
An 88-year old female was admitted to the hospital after falling at a department store and fracturing her hip. Her clinical course was complicated by a GI bleed and the patient was subsequently transferred to a nursing facility for subacute care. On admission to the nursing facility, a stage II sacral decubitus ulcer was documented. The transfer records from the hospital did not identify any such ulcer. A comprehensive care plan was implemented to treat the ulcer; however, the patient refused turning and positioning stating she preferred to stay on her back. The patient also refused dressing changes and nutritional supplementation. When the family members were consulted, they would say that “she has always been very stubborn”. During her stay at the nursing facility, the patient’s ulcer progressed to stage IV. The patient developed osteomyelitis and was transferred to a hospital wound clinic. Subsequently, the family sued the nursing facility alleging that their negligent treatment resulted in the worsening of their mother’s pressure ulcer.
A 59-year old female with multiple comorbidities including Parkinson’s Disease, diabetes, alcohol and hepatitis C related cirrhosis with ascites, peripheral vascular disease, and end-stage renal disease had 22 inpatient admissions over a 3-year period until her death. The patient often developed fluid overload requiring admission to the hospital. Whenever the hospital discharged the patient, she would be sent to a skilled nursing facility because the patient’s residence was a 4-floor walkup and the patient was unable to climb stairs. Despite the use of best ulcer prevention practices such as nutritional supplementation, heel protectors, a Geomatt, and repositioning every 2 hours, the patient developed pressure ulcers on her heels and over her ischial tuberosities. The patient routinely refused toileting assistance, wound care treatments, and was noncompliant with repositioning. The patient’s heel ulcers gradually progressed to stage IV. On her last transfer to the hospital for fluid overload, the patient died. Following her death, the decedent’s daughter sued the parties involved.
In these cases, our exceptional claims team was able to utilize a variety of leading clinical experts to counter the claims put forth by the plaintiff’s attorney. We were able to demonstrate that the clinicians and facilities involved met the standard of care in every manner. Our attorneys showed that in many cases, the patient’s nonadherence and grave clinical condition were responsible for the patients’ poor outcome. In each case, the jury unanimously agreed with the defense that the providers involved had not departed from good and accepted medicine.
**Although the disposition of this claim predates the formation of EmPRO, the management of the claim was handled by EmPRO’s management company (PRIMMA, LLC). To learn more about the EmPRO story, click here.