By Heidi Cross, MSN, RN, FNP-BC, CWON
We have all seen them. Those large billboards along the highway and advertisements on television, advertising law firms and encouraging us to hire an attorney if a loved one has experienced any skin breakdown or “bed sores” within health care facilities. It often goes something like this:
Has your loved one suffered a bed sore? Weight loss? Dehydration? Malnutrition? Shocking injuries? Unnecessary suffering? These are possible signs of abuse and neglect. Contact us today to get the justice that you and your loved one deserve!
The United States is one of the most litigious nations in the world, with the result that numerous medical malpractice lawsuits are initiated against hospitals and other health care facilities, as well as practitioners. Commonly, these lawsuits allege that the facility failed to meet standards of care related to management of wounds including pressure injuries, failed to provide adequate nutrition, and did not properly address issues such as incontinence.
The Problem: Pressure Injuries and Malnutrition
Data show that jury awards are highest for pressure injuries caused by multiple factors. Often, the highest awards for pressure injuries caused “by a single factor were seen when that factor was inadequate nutrition.”1 Lawsuits related to pressure injuries and malnutrition are becoming more common, with recovery against a health care facility in 87% of cases filed, including jury verdicts and out of court settlements.1
It behooves us to be aware of the vulnerabilities involved in the care of patients and the factors that can lead to a lawsuit. The first step is to be familiar with the terminology and the basics of a lawsuit, including how it is initiated and then how it proceeds.
Before discussion about the basics of a lawsuit and its process, clinicians should be aware of certain legal terminology. The following are legal terms that provide a solid foundation for clinicians who want to familiarize themselves with litigation.
Plaintiff: The person initiating a lawsuit, seeking remedial relief for a perceived injury, and suing in a civil action.
Defendant: The person or entity against whom the lawsuit is brought.
Civil law (versus criminal law): Usually in regard to an injury that is alleged to have occurred, dealing with the rights of persons or entities. The purpose is to make the plaintiff whole again, with the remedy involving money or compensation. More than 90% of these cases are settled out of court to avoid going to trial, even if the facility can show it has met most if not all standards of care. In civil tort law, proof of guilt is met by a preponderance of the evidence, whereas in criminal law, proof of guilt must be beyond a “reasonable doubt.”
Medical malpractice: The plaintiff alleges that there has been a commission of an error or an omission of care by a health care provider or facility that has caused injury to or death of the patient. Liability requires a departure from a recognized standard of care that proximately causes an injury.
Negligence: Four elements must be shown to prevail in a lawsuit.
- Duty: The defendant must have had a legal duty of care to the plaintiff. In accepting a patient and assuming care, duty is assumed.
- Breach: The defendant breached the duty owed to the injured party.
- Causation: As a result of the breach of the duty, the defendant proximately caused harm to the patient.
- Damage: As a result, the plaintiff suffered damages. These damages can be both economic and noneconomic (ie, pain and suffering).
Statutory liability: Some states have regulations that certain health care providers must meet. For example, New York State has regulations specific to skilled nursing facilities and adult care homes that set forth certain expectations. There are federal regulations as well that facilities must meet. If there is a breach of any particular regulation, plaintiff must still show that harm has been done as a result.
Discovery: This is the formal process of gathering all medical records, related documents, and information with the purpose of exchanging information between the parties about the witnesses and evidence that will be presented at a possible trial or used in the settlement. This includes depositions, physical examinations, facility policies, incident reports and investigation, staff personnel files, pictures, and even private emails or other correspondence of participants. Over the years, courts have also allowed access to quality assurance, credentialing, personnel and staffing, and corporate information.
Punitive damages: Sometimes, the plaintiff asks to be awarded punitive damages. These are separate from the “compensatory” damages described above and allege egregious and intentional behavior on the part of the defendant. The purpose is to make an example of the defendant’s care of the plaintiff, punish for that behavior, and compensate for perceived mental anguish, shame, or other aggravations.
The Anatomy of a Lawsuit
The exact steps and processes vary by state, but they generally follow a similar course with similar actions:
- A patient or family member perceives an injury or lack of care in a facility and contacts a plaintiff attorney to proceed with a lawsuit.
- The plaintiff attorney obtains the medical records and usually hires a medical expert to analyze the records to ascertain whether there has been a breach in the standards of care and complete an affidavit or certificate that the case has “merit.” If so, the attorney proceeds with the lawsuit.
- A formal complaint is filed, which includes the “failure to’s,” for example, failure to prevent the development of pressure injures, failure to treat them, failure to turn and reposition, and failure to provide adequate nutrition and hydration and prevent weight loss, among many others.
- The defendant has a certain amount of time to provide “answers,” essentially denying the “failure to’s” and raise their defenses. This may include “interrogatories,” which comprise a list of questions one party sends to another as part of the discovery process, or a request for a “bill of particulars,” which is intended to amplify the plaintiff’s claims and provide clarity.
- Each attorney hires a medical expert or witness with particular expertise in the subject matter to analyze the medical records and give opinions related to standards of care. The expert may provide a written report expressing their opinions that will be used in further proceedings. In certain states, the expert may be deposed.
- Settlement or trial is next. Ninety percent of all medical malpractice cases are settled. Parties can settle anytime, even once a trial has begun. A settlement stops a case dead in its tracks and avoids the high costs of taking a case to trial, thereby minimizing attorney fees and court costs. There is always a gamble in taking a case to trial.
- At trial, the losing party may choose to file an appeal concerning perceived errors in the trial (procedural or evidentiary) or the amount of damages awarded.
It is important to understand legal terminology and how a lawsuit proceeds in case you are ever involved in one. Documentation will be reviewed closely and forms the basis of the evidence, so take care to document properly.
Hopefully, this familiarizes you with the litigation process related to pressure injuries and skin breakdown, and you will never have to discover the legal process yourself. It is never a bad idea to consider medical malpractice insurance depending on your employment situation and coverage and protect yourself from liability. Keep in mind, too, that the legal process grinds slowly, and you may find yourself looking at a chart from years ago, when memory has faded. Litigation is another reason for detailed, timely, and accurate documentation!
- Voss AC, Bender SA, Ferguson ML, Sauer AC, Bennett RG, Hahn PW. Long-term care liability for pressure ulcers. J Am Geriatr Soc. 2005;53(9):1587-1592.
About the Author
Heidi H. Cross, MSN, RN, FNP-BC, CWON, is a certified Wound and Ostomy Nurse in Syracuse, NY. She has extensive experience caring for wound and ostomy patients in acute care as well as in long term care facilities. Currently, she is employed by CNY Surgical Physicians consulting for nursing homes in the Syracuse area, and has served as an expert witness for plaintiff and defense attorneys.
The views and opinions expressed in this blog are solely those of the author, and do not represent the views of WoundSource, HMP Global, its affiliates, or subsidiary companies.