Wound Care Lawsuits: Overcoming 6 Common Difficulties

DMCA.com Protection Status
Wound Care Lawsuits

By Diane L. Krasner, PhD, RN, FAAN

Originally a poster first conceived in 2009, "Six Sticky Wickets That Commonly Occur in Wound Care Lawsuits" is as relevant today as it was a decade ago. In my review of wound care medical malpractice cases, I see these six difficult situations ("sticky wickets") occurring all too often. Strategies for avoiding the Six Sticky Wickets have been updated and are discussed here.

With wound care litigation a continuing consideration, it is prudent for health care professionals and facilities to engage in preventive legal care.1,2 One approach is to analyze common situations that occur in wound care lawsuits. Based on my review of over 200 legal cases, Six Sticky Wickets are identified and approaches for managing them are elaborated here.

The Six Sticky Wickets

  1. 24/7 coverage, holidays, and vacations
  2. Scope of practice
  3. Symptom management
  4. Skin changes at life's end (SCALE)3
  5. Communication with the patient's circle of care and other health care professionals
  6. Documentation4,


Wound Documentation Dos and Dont's
Wound Documentation Dos & Don'ts: 10 Tips for Success


#1: 24/7 Coverage, Holidays, and Vacations
The current standard of care is that wound care expertise for assessments, consultations, or other recommendations be provided 24/7. It is no longer acceptable for a wound patient who is admitted on a Friday, for example, to wait until Monday morning for a wound consultation. Facilities should have a standing guideline or some systematic method for wound care services to be delivered in a timely manner.

Some options include:

  • Standing orders or guidelines
  • Cross training staff to cover (e.g., hospitalists in acute care; supervisors in post-acute care)

Additionally, there should be a formalized plan to cover wound services when the "wound nurse" or "wound physician" is on holiday or vacation.

Throughout the years in several legal cases I have reviewed, the failure occurred when the wound nurse was on vacation or there was a holiday. There were significant delays in treatment that affected the plan of care, and these situations could not be defended in litigation.

#2: Scope of Practice
Wound care practitioners who practice outside of the scope of their practice—although often admired for their commitment—open themselves up to serious problems should a lawsuit be brought against them or their facility (vicarious liability).

Scope of practice is determined by statutory law (state practice acts) and varies from state to state. The following are examples of common scope of practice problems in wound care that have the potential for wound care practitioners to lose their licenses to practice through the administrative court system:

Example 1
A registered nurse debriding to bleeding tissue (wide excision) in a state where RN debridement is restricted to devitalized tissue. Check with your state board to seek clarification regarding specifics for your profession. Obtain a surgical consultation if indicated.

Example 2
A non-qualified provider (e.g., RN, LPN/LVN) ordering a prescription topical agent (e.g., enzymatic debrider, even by protocol) or a Food and Drug Administration–regulated device (e.g., negative pressure wound therapy).

Example 3
In any setting, an LPN/LVN wound nurse regularly assessing wounds or regularly carrying out wound care according to protocol, without ongoing assessments and oversight by an RN, physical therapist, physician, or physician extender. LPNs/LVNs monitor; RNs and other providers assess.

#3: Symptom Management
Holistic patient care requires that patient-centered concerns, such as pain management or nutritional support, be addressed by the interprofessional wound team. Excellent local wound care in the absence of total patient care can be problematic if a lawsuit is filed. Large add-on awards have been won in court for lack of attention to pain management (pain and suffering awards). Punitive damages have been awarded for lack of attention to nutritional support.

Timely consultation with pain specialists, dietitians, or other providers based on an individual's symptoms and assessed needs improves patient outcomes and decreases the risk of legal problems.

#4: SCALE: Skin Changes at Life's End
Not all wounds are healable, including those wounds associated with skin changes at life's end (SCALE).3 Failure to acknowledge a non-healable wound in the plan of care and reflect that in the patient’s medical record creates a sticky wicket.

For example, using a boilerplate care plan that states "wound will be healed in 90 days" when the wound is non-healable makes the case almost impossible to defend in a lawsuit situation.

Additionally, there should be discussion with the patient and his or her circle of care regarding the non-healability of the wound. This discussion should be documented in the patient's medical record.

To download a copy of the SCALE final consensus statement and related documents and PowerPoint files, go to www.dianelkrasner.com/resources.

#5: Communication With the Patient's Circle of Care and Other Health Care Professionals
When patients and members of their circle of care (spouses, significant others, caregivers) are included in health care discussions and decision making, they are less likely to sue. "Lack of knowledge about pressure ulcers fuels unrealistic expectations about their treatment and prognosis and could set the stage for potential litigation."1

Facilities should have quality management or risk management teams who can train and assist wound care clinicians in communicating with patients and their circle of care. Each individual needs to know what level of communication they are responsible for.1

#6: Documentation
The number one sticky wicket in wound care lawsuits is incomplete or missing documentation. The most important strategy for preventive legal care is documentation. Good documentation is comprehensive, consistent, concise, chronological, continuing and also reasonably complete.1,4

I have observed the following documentation problems during chart reviews, and they create sticky wickets for wound care defense:

  1. Inconsistent documentation of wound size, stage, or location from one provider to another: Example: The physician documents: 2 × 3 cm stage 2 sacral decub. On the same patient, the nurse writes: 5 × 6 × 2 stage 4 L hip pressure injury.
  2. Incomplete documentation of information requiring detail: Example: Order reads: Specialty bed and chair cushion. Specific types of products need to be specified: low–air loss mattress, replacement and air-filled chair, cushion.
  3. As the risk assessment score changes for a patient (e.g., Braden Scale score falls from 18 to 13), there is no documentation of a change in the plan of care.

Conclusion

The term "sticky wicket" comes from the British game of cricket and refers to "a pitch [playing field] that has become wet because of rain and therefore on which the ball bounces unpredictably".5 In common parlance, sticky wicket has come to refer to "a difficult or unpredictable situation".5 Good preventive legal care for wound care involves planning and preparing so that unpredictable situations are avoided. Addressing the Six Sticky Wickets That Commonly Occur in Wound Care Lawsuits can help to protect you and your facility from litigation.

REFERENCES
1. Ayello EA, Capitulo KL, Fife CE, et al. Legal issues in the care of pressure ulcer patients: key concepts for healthcare professionals. International Expert Wound Care Advisory Panel. 2009. www.dianelkrasner.com/resources. Accessed October 22, 2019.
2. Yankowsky KW. Preventive Legal Care: A Practitioner’s Guide to Medical-Legal Fitness. XX, XX: Best Publishing Company; 2015.
3. Sibbald RG, Krasner DL, Lutz JB et al. Skin changes at life’s end: final consensus statement. SCALE Expert Panel; 2009. www.dianelkrasner.com/resources. Accessed October 22, 2019.
4. Mosby's Surefire Documentation: How, What and When Nurses Need to Document. 2nd ed. St. Louis, MO: Mosby; 2016.
5. Wiktionary. https://en.wiktionary.org/wiki/sticky_wicket.

About the Author
Diane Krasner, PhD, RN, FAAN is a Wound and Skin Care Consultant in York, PA. She is a former Clinical Editor of WoundSource and has served on the WoundSource Editorial Advisory Board since 2001. Check out Dr. Krasner's website for complementary resources on Skin Changes At Life's End (SCALE), wound pain, and the Why Wound Care? Campaign at www.dianelkrasner.com.

The views and opinions expressed in this blog are solely those of the author, and do not represent the views of WoundSource, Kestrel Health Information, Inc., its affiliates, or subsidiary companies.

Recommended for You

  • End of Life Skin
    October 3rd, 2019

    By Heidi Cross, MSN, RN, FNP-BC, CWON

    Ms. EB, a frail 82-year-old woman admitted to a long-term care facility, had a complex medical history that included diabetes, extensive heart disease, ischemic strokes with left-sided weakness and dysphagia, dementia, kidney disease, anemia...

  • Lab culture
    October 15th, 2015

    By Cheryl Carver, LPN, WCC, CWCA, FACCWS, DAPWCA, CLTC

    I see it all of the time. Wound care clinicians performing wound cultures incorrectly, or obtaining cultures just because there is an open wound. With this being said, there are certain health care settings where per protocol...

  • Standardized Documentation
    July 25th, 2018

    by Margaret Heale RN, MSc, CWOCN

    Wound care can be so straightforward. The process starts with a comprehensive assessment, and then the wound care regimen can be planned and the frequency of dressing changes determined. A well-written order will include all of the relevant...

Important Notice: The contents of the website such as text, graphics, images, and other materials contained on the website ("Content") are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. The content is not intended to substitute manufacturer instructions. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition or product usage. Refer to the Legal Notice for express terms of use.