To avoid being sued, document everything
If care is good, show it
Atlanta attorney Debra Green can sum up in just a few words how nursing homes can avoid lawsuits for negligence: Meet the standard of care, and document it.
Judging by the slew of lawsuits that have been filed against nursing homes during the last few years - and the huge jury awards won by claimants - the simplicity of this advice seems to belie the difficulty many skilled nursing facilities have following it.
Yet the industry should expect more litigation and more large financial penalties as the public discovers additional disturbing news about nursing homes that are negligent and ignore their responsibilities to patients and their families.
But even facilities that are committed to high-quality care can find themselves dragged into court because of oversights - such as erratic documentation - even when the level of care meets reasonable standards.
What's a well-meaning nursing home to do? First of all, document care in the most complete, detailed, and consistent way possible. David Soloway, an attorney with the law firm Frazier, Soloway and Poorak in Atlanta, hammers home that point repeatedly, adding that there's no such thing as too much detail. Detail is especially important to tracking care of patients with chronic wounds, which can indicate quality of care problems. Comprehensive documentation of all aspects of care delivered to a patient can be the best friend of a nursing home that finds itself as a defendant, as long as the care provided has been adequate. But a lack of documentation can become the nursing home's worst enemy once the claimant's attorneys sift out inconsistencies or gaps.
Soloway knows from his own experience that attorneys who sue nursing homes will zero in on documentary evidence in initial screenings of potential claims relating to pressure ulcers. They also will obtain copies of all relevant medical records, then hire an expert to scrutinize them. He writes: "The quality of recordkeeping by the nursing staff may make the difference between an attorney's willingness to pursue potential claims and a decision to decline a case. Healthcare providers must be able to rely upon the accuracy and completeness of the records in order to make sound decisions about care. Both the accuracy and the timeliness of these communications can be of critical importance."1
"[Documentation] needs to show exactly what was done and by whom," says Soloway. "When a patient is turned, the person who turned him or her and the time and date should recorded every time. If diet is adjusted, it needs to be recorded in detail."
In the course of a lawsuit, poor documentation may show that the patient who developed pressure ulcers was not regularly turned while in bed, that linens were not changed regularly, that the patient did not receive the prescribed amount of nutritional supplements, that the patient's wound dressings were not changed in a timely manner, and that not enough attention was paid to the patient's wound(s) as they progressed from stage to stage.
Heeding the warnings
Despite Soloway's admonitions, many facilities still either discount the importance of documentation or do not have adequate controls in place to ensure that documentation is a priority. "I've often seen nursing homes drop the ball on the point of documentation, and they've been punished," he says.
Of course, even the best documentation is only a reflection of the care delivered. If a chart indicates sporadic care, poor intra-professional communication, erratic turning or assessment schedules, overly frequent changes to the course of care, or conflicting treatment plans, then opposing attorneys are certain to use that documentation as a blunt instrument during trial.
Soloway notes that documentation is extremely important not just to protect the nursing home, but also to provide information for caregivers and to ensure continuity of care. A staff member will not know what a colleague has done previously unless it's stated clearly in the patient's record.
Some examples related to wound care that should be documented include:
· a comprehensive portrayal of a patient's physical and mental status and disposition;
· a complete description of the wound, including wound location, wound bed characteristics (length, depth, width, tunneling, undermining, necrotic tissue, granulation, epithelialization, etc.), wound volume, wound character, odor of exudate or drainage, peri-ulcer skin characteristics, and duration of the ulcer prior to admission;
· treatment of the wound prior to nursing home admission;
· consistent periodic staging of the ulcer and indications of infections;
· factors that may affect the patient's ability to heal, including assessments of nutrition, pain, and psychosocial circumstances1;
· actions taken to relieve pain and to improve the patient's overall comfort;
· telephone calls between health care providers that are relevant to a patient's care.
In addition to written documentation, items such as photographic longitudinal records of wounds may be valuable for demonstrating healing or deterioration, and also to provide a visual justification for the care that was provided. Photographs also support written descriptions of a wound's characteristics and location.
A top-down proposition
Green adds that the responsibility to adhere to standards of care ultimately rests with administrators, not with those who provide the care. Only an administrator can ensure, for example, that a facility complies with federal and state regulations, that employees are properly licensed and supervised, that the treatment of residents meets the standard of care, and that problems are quickly remedied. It's a top-down proposition, says Green, who reminds nursing homes of some of their obligations:
· Good administration. Federal regulations require nursing homes to be administered in a manner that enables them to use their resources effectively and efficiently and to attain the highest practical physical, mental, and psychosocial well-being for their residents.
· Good oversight. Nursing homes are required to have a governing body to establish and implement policy for managing and operating the facility, and to have a physician to serve as medical director and to be responsible for implementation and coordination of resident care. The physician need not be on premises or participate in direct patient care. There is a trend afoot to include an ET nurse in the mix of on-site professionals, though it's not required by any regulations, Green adds.
· State codes. State codes usually stipulate that staff cannot have criminal records and are required to report any mistreatment or abuse, including injuries of unknown sources.
Work within limits
Some of the problem lies with facilities overextending themselves to make more money, sources say. But if quality of care suffers and the home is caught, the price can be far higher. If a facility has difficulty providing the minimum adequate care in accordance with state regulations, it needs to re-evaluate the scope of its operations, says Nirja Aiyer, an attorney with the law firm of David Marks & Associates in Houston, which has successfully sued repeat offender Beverly Enterprises. (See related story, p. 109.)
"Maybe you can't adequately cover 100 beds. Maybe you should consider smaller overhead if the minimum regulations pose a problem," she says. And facilities should employ a staff of adequate size to address all patient needs. Feeding is a prime example, because nutrition is so strongly linked to pressure sore development and healing. For example, says Aiyer, if an aide has to feed eight patients at lunch, he or she won't have time to feed the one or two who might require hand feeding.
Is the situation improving? It's hard to tell, say Wound Care's sources, but there's no question that multimillion-dollar judgments make some people sit up and take notice. Perhaps the fear of being at the receiving end of a negligence charge will make errant nursing home operators more responsible, says Aiyer. "For some [nursing home companies], lawsuits are just part of doing business. But maybe others will change."
Reference
1. Soloway DN. Civil claims relating to pressure ulcers: A claimants' lawyer's perspective. Ostomy Wound Mgmt 1998; 44:20-26.
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