Bedsore and Pressure Ulcer Lawsuit
A pressure ulcer, commonly known as a bedsore or decubitus ulcer, is the breakdown of skin and underlying tissues caused by the prolonged pressure of bodyweight.
What is a Bedsore?
Generally, they are also an excellent indicator that a nursing home or hospital patient has received inadequate care or ongoing negligence. This definition is further refined by the National Pressure Ulcer Advisory Panel (NPUAP) and European Pressure Ulcer Advisory Panel (EPUAP) as “localized injury to the skin and/or underlying tissue usually over a bony prominence as a result of pressure, or pressure in combination with shear and/or friction.” In April 2016, the National Pressure Ulcer Advisory Panel (NPUAP) replaced the term “pressure ulcer” with “pressure injury” in the NPUAP Injury Staging System to reflect injuries to both intact and ulcerated skin.
Pressure ulcers are becoming an epidemic in nursing homes in D.C., Maryland, and Virginia. A study in 2010 found that the rates of pressure ulcers are increasing. Approximately 3 million adults are affected across the United States. As many as 5% of all hospital patients are afflicted, but pressure ulcers can develop in someone at home, in a nursing home, or under hospice care. One study found that most pressure ulcers arise in hospitals, where the prevalence is 3 – 14% among inpatients. In long-term facilities like nursing homes, 1.5 – 25% of patients develop bedsores. Pressure ulcers are probably the most common reason for lawsuits against nursing homes. In a 2005 survey conducted by Medicare, the federal government found that “the prevalence of pressure ulcers remains unacceptably high.” The Office of the Inspector General in the Department of Health and Human Services reported that more than one-quarter of severe nursing home abuse cases go unreported. The alert from the Inspector General’s office stated that Medicare needed to do more to track abuses.
There is also a very high medical cost associated with pressure ulcers. In 1996, the $6.4 billion spent on pressure ulcer care amounted to 1.2% of the total healthcare costs in the United States. In 2006, almost $11 billion was paid out for hospital stays in which a pressure ulcer was either a primary or secondary diagnosis. Medicare has the policy to withhold reimbursement to facilities treating patients’ bedsores acquired in those facilities. That means hospitals will not get paid for treating a bedsore condition unless it originated somewhere else. This strict policy incentivizes hospital and nursing homes to accurately asses for skin problems in all patients.
What Causes Bedsores?
There are four leading causes of bedsores: pressure, moisture, shear, and friction. Bedsores are caused by tissue ischemia, which means a blockage of blood supply carrying oxygen and nutrients that keep that tissue alive. Without a constant supply of blood, the tissue begins to die. Generally, bedsores first affect only the outer layers of skin, then spread inward. In the worst cases, bedsores can permanently damage muscle or bone. Such wounds can be very painful and take a long time to heal.
The most frequent areas of pressure ulcer development are over bony prominences. These areas include the sacrum (the area at the base of the spine above the buttocks), heels, and elbows. Bedsores are most likely to develop over bony regions because there is generally less protective tissue in those areas. The bones are close to the surface and are under the most pressure.
Bedsores usually develop on the lower half of the body, because that is the part of the body exposed to the most pressure. Two-thirds of all wounds develop around the pelvis and a third around the lower limbs. In cases of extreme neglect, we have seen pressure ulcers form on the back of a patients’ head, ears, and even the scrotum. An external pressure of 50 mm Hg may rise to over 200 mm Hg at a bony prominence leading to tissue injury.
What Are the Risk Factors for Bedsores?
Bedsores occur very frequently in nursing home and hospital residents who are spending long periods in bed or a wheelchair. People with limited mobility are especially at risk because they rely on hospital and nursing home staff to turn and reposition them frequently; otherwise, their skin will break down. Nursing home residents often have limited mobility because they are receiving rehabilitation from a stroke, fall, or other injuries.
Another risk factor for developing a bedsore is excess moisture. Moisture-associated skin damage (MASD) is the term for inflammation or skin erosion caused by prolonged exposure to a source of moisture such as urine or stool. Excessive humidity weakens skin tissue, making it more likely to break down. Seniors frequently have excessive moisture on their skin due to incontinence or excess skin.
Shear and friction also frequently cause wounds. Shear is a force that acts on an area of skin in a direction parallel to the body’s surface when you pull the bones of the pelvis in one direction, and the skin moves in the opposite direction. The deeper tissues slide with the bone, while the tissues close to the skin move with the outside surface like the bed or wheelchair. The result is tissue death below the skin. A shear injury will not be seen at the skin level because it happens beneath the surface. Elevating a nursing home resident’s bed may increase shear injury.
Friction injuries, on the other hand, are visible. Friction is the mechanical force exerted when skin is dragged across a surface. It is two surfaces moving across one another. Injuries caused by friction are often referred to as skin tears. They can look like road rash and then develop later into deeper pressure ulcers if not cared for properly.
Some people are more likely to have pressure ulcers than others, even if reasonable care is provided. Here some conditions that would put you more at risk for developing a bedsore:
- Bad nutrition
- Impaired kidney function and on dialysis
- Heart failure
- Peripheral vascular disease
- Near death
Many people at the end of their lives will develop injuries that are known as Kennedy Terminal Ulcers. These do not result from inadequate care but are merely part of the dying process and comprehensive organ death. There is a lot of controversy surrounding what a Kennedy Terminal Ulcer is, what it looks like, and what wounds classify as such. Nursing homes frequently use the Kennedy Terminal Ulcer classification as a defense or excuse for poor care; however, the classification is only applicable in some limited circumstances. Here’s how you know someone has a Kennedy Terminal Ulcer vs. a pressure ulcer from poor care:
- The wound developed suddenly, toward the end of life
- Often shaped like a pear, butterfly, or horseshoe
- Has irregular borders, outline
If a wound developed over the course of weeks or months, you can be sure that it is not a Kennedy Terminal Ulcer.
What do Bedsores Look like and what are Bedsore Stages?
Bedsores can range in appearance to a small bruise or red mark to massive, gaping hole in someone’s backside. The NPUAP categorizes bedsores into multiple stages based on their severity. These wounds help care providers determine what interventions a patient may require to treat his or her bedsores. Attorneys also use the bedsore stages to decide what claims to accept and what claims not to accept. Most attorneys, including KBA, will only pursue a nursing home or hospital negligence case involving pressure ulcers if the wound is stage III or IV.
- Stage I – Stage I wounds will have intact skin with a localized area that appears to be a bruise or red mark. Changes in sensation and temperature may occur before any visual changes. Color changes do not include purple or maroon discoloration, as those symptoms indicate a deep tissue injury.
- Stage 2 – Stage 2 bedsores involve damage to the primary and secondary layers of skin. The wound bed will be pink or red, most and may present as a fluid-filled blister in some cases.
- Stage 3 – Stage 3 wounds involve the first layer tissue through the skin and into the fascia, but not bone or muscle. Yellow tissue may be present.
- Stage 4 – Stage 4 wounds involve skin and tissue loss with exposed muscle, tendons, fascia, or even bone. Sometimes wounds can “tunnel” below healthy layers of tissue, so the extent of a wound’s damage is complicated to determine at first.
- Deep Tissue Injury – A deep tissue injury is a localized area of tissue with deep red or purplish discoloration similar to a bruise. These pain and temperature changes often occur before color changes. Deep Tissue Injuries result from intense and/or prolonged pressure and shear forces at the bone-muscle level. In some cases, Deep Tissue Injuries open up from the inside out to reveal the full extent of tissue damage beneath the surface. Nursing homes and hospitals frequently use a diagnosis of Deep Tissue Injury to hide behind poor care. A defense we have seen in case-after-case is the claim that a pressure ulcer was a Deep Tissue Injury that started in another facility but only became visible in the Defendant’s nursing home.
- Unstageable – an unstageable wound is what it sounds like – it is a wound that cannot be staged because a slough or eschar covers it. Slough and eschar are forms of dead or dying tissue that often overlay wounds.
- Do Bedsores Bleed?
Bedsores can and do bleed. Bleeding, while scary, could be a bad or a good thing depending on the wound. Bleeding means blood is getting to the area, which could reflect that it is healing. On the other hand, bleeding and oozing wounds could be a sign of infection.
Do Bedsores Smell?
An odor coming from a bedsore is a significant indicator of a potential infection. As bacteria invades the tissue in the wound, it releases chemicals that cause an odor to develop.
Laws and Regulations Related to Pressure Ulcers
The most critical regulation related to a nursing home’s prevention of pressure ulcers is 42 C.F.R. § 483.25. This regulation is found in the Quality of Care section of nursing home regulations and states that a nursing home must ensure that:
(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were unavoidable; and
(ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing.
Stated more simply, the nursing home has to make sure that someone entering a nursing home without wounds does not develop wounds, and someone who is entering a nursing home with wounds does not worsen in his or her condition unless it was unavoidable.
This regulation is beneficial for nursing home abuse attorneys because it essentially sets the standard of care for the lawsuit. It also delineates the fact that some wounds are preventable and others are not. Nursing homes have a hard time arguing that Section 483.25 does not set the standard of care when it is a federal regulation nursing homes must follow in order to receive reimbursement from Medicare.
States also have their own regulations related to pressure ulcers. Under Maryland law, nursing home residents must have sufficient staff so that each patient “receives proper care to prevent decubitus ulcers and deformities.” COMAR § 10.07.02.12(O). Nursing homes must also provide sufficient licensed care so that patients are kept comfortable, clean and are protected from accident and injury.
Virginia also has regulations related to the prevention of pressure ulcers. Under 12 VAC 5-371-220, nursing homes must provide sufficient services to “prevent clinically avoidable complications, including, but not limited to . . . pressure ulcer development.” Further, “each resident shall be given proper daily personal attention and care, including skin, nail, hair and oral hygiene, in addition to any specific care ordered by the attending physician. Provision of daily personal care shall be documented in the clinical record.”
How Long Does it Take for a Bedsore to Develop?
Because prolonged pressure causes bedsores, it is essential to know how long it takes for them to develop so proper measures can be put in place to prevent them from occurring. According to one study, findings from three models indicate that pressure ulcers most likely happen in the first hour and 4-6 hours after sustained loading. That study also found that pressure from sitting was greater than lying down. Therefore, wounds may develop more quickly in those who are left sitting for long periods of time than those who are left lying down. While the science is still evolving, most experts will agree that patients at risk for skin breakdown should be turned at repositioned at least every two hours to avoid bedsores.
Are Bedsores Preventable?
Bedsores are most definitely a preventable condition, but it requires a holistic approach to a patient’s care. The consensus is that proper prevention of bedsores is to enact the following measures:
- Risk assessment – a nursing home or hospital must determine first whether a patient is at risk for developing pressure ulcers. One way to accomplish this is by using a structured risk assessment such as a Braden Scale. A Braden Scale creates a numbered score for a patient to determine how at risk they are for developing wounds. Once the proper assessment is complete, the facility should repeat the evaluation at regular intervals based on the acuity of the patient. Long-term patients should be assessed weekly for four weeks, then quarterly.
- Skin Care – a patient’s skin should be inspected upon admission as soon as possible. After entry, patients should be checked head-to-toe for signs of new breakdown. A patient’s skin should be cleaned frequently and promptly, and patients should remain dry as well.
- Mobilization – Everyone at risk of developing bedsores should be turned and repositioned. The frequency of the repositioning plan should be based on the support system in use, tolerance for pressure, and individual preference. Facilities should consider the use of heel floats, air mattresses, and wheelchair cushions to redistribute weight.
- Nutrition – A facility must use a screening tool and assess each patient for nutritional defects. Everyone at risk for developing pressure injuries should be sent to a dietitian or nutrition to ensure sufficient protein and other nutrients to promote wound healing.
- Hydration – Proper hydration is another essential aspect of pressure ulcers. If someone does not have proper hydration, their skin can become dry, which makes it more fragile and susceptible to wounds.
How are Bedsores Treated?
Fortunately for victims of nursing home neglect, there are ways to treat bedsores once they have developed. The first and most important aspect of treating wounds is to recognize they are there. Pressure ulcer treatment starts and ends with adequately assessing the nursing home resident. After a wound is identified many different procedures can be deployed to ease pressure and ensure proper healing:
- Off-loading Devices – the facility should consider offloading devices such as heal cushions, pressure-relieving mattresses, and gel cushions for wheelchairs.
- Wound Dressing – the facility should select a wound dressing based on;
- The ability to keep the wound bed moist
- The need to address bacterial bioburden
- The nature and volume of wound exudate
- The condition of the tissue in the ulcer bed
- The state of the periulcer skin
- The ulcer’s size, depth, and location and other factors
- Wound Cleansing – If the wound is open it must be cleaned at the time of each dressing change with potable water, antimicrobials, and aseptic solutions.
- Debridement – Debridement is the removal of dead tissue from a bedsore to promote healing of the healthy tissue. The removal can be done either with a hard instrument, such as a scalpel or with a chemical agent that dissolves the dead tissue. Either way, it is not a fun experience and can be extremely painful.
- Surgery – If a wound is severe enough it may require surgery. A condition called osteomyelitis can result in bone removal if an infection is severe enough. Unfortunately, we have had multiple cases where a patient’s bones required removal because a bedsore had gotten so infected that it invaded the bone.
- Vacuum-Assisted Closure of Wound – Vacuum-assisted closure or “wound VAC’ is a type of therapy to decrease pressure on the wound. Vacuum-assisted closure helps the wound heal in several ways:
- It reduces swelling
- Pulls excess fluid from the injury
- Pulls the edges of the wound together
- Stimulate growth of new tissue
- Increases blood flow to the wound
- Decreases inflammation
- Hyperbaric treatment – Although the science is not fully developed, some physicians believe hyperbaric therapy can improve wounds.
Hyperbaric treatment – Although the science is not fully developed, some physicians believe hyperbaric therapy can improve wounds.
Are Bedsores Deadly?
Bedsores are often associated with higher mortality rates, infection, and surgery. According to a 2005 study, reported bedsores were a cause of death among 114,380 people. Nearly 80% of pressure ulcer-related deaths occurred in people at least 75 years old. Septicemia (a complication from infection) was reported in almost 40% of pressure ulcer-associated deaths. Pressure-ulcer associated mortality was higher among black people than white people. The study concluded that pressure ulcers resulted in fatal infections that cause more than 100,000 deaths per year.
A study from 1997 found that 7.7% of residents in long-term care facilities had pressure ulcers and that residents with pressure ulcers had more than a two-fold increased chance of dying compared to those without ulcers. A study of 286 hospital patients determined that 59.5% of residents who developed a pressure ulcer perished within one year of developing the ulcer. Another study of a group of 301 nursing home admissions discovered that the presence of a pressure ulcer upon admission, the development of a new ulcer, and failure of the ulcer to heal were all associated with a two- to threefold increase in the risk of dying during a 6-week period following admission. In short, pressure ulcers are very deadly.
Can Bedsores Heal? If so, how long does it take for a bedsore to heal?
Stage 1 pressure ulcers can resolve in as little as a day or two if adequately treated. Stage 2 bedsores can heal within a matter of weeks if properly treated as well. That is why most attorneys will not accept cases that only involve Stage 1 or Stage 2 wounds. Most likely, those wounds will heal. Therefore, it would not be worthwhile for an attorney or client to pursue those cases because the cost of pursuing them would likely outweigh the recovery. Stage 3 and Stage 4 wounds are other situations. Stage 3 and 4 wounds have gone through the first layers of tissue and involve fat, muscle, even bone. Stage 3 pressure ulcers will take at least one month, in some cases up to 4 months to heal. Stage 4 wounds could take months to recover and, in many cases, never heal at all. That is why stage 4 wounds so frequently result in litigation.
Are Bedsores Painful?
Pressure ulcers can be a painful condition. The National Pressure Ulcer Advisory Panel created a white paper on pressure ulcer pain which explains how pain happens with pressure ulcers. Tissue trauma from sustained loads causes pressure ulcer pain, inflammation, damage nerve endings, infection, dressing changes, debridements, and operations associated with bedsores. According to the NPUAP, the skin has more sensory nerves than any other bodily organ. As pressure ulcer damage expands, chemicals released irritate the nerves.
Nursing homes and hospital have self-reported pain scales. In cases KBA has handled, we have frequently seen pain scores of 8-10/10 from nursing home residents with pressure ulcers. There is no question that stage III and IV wounds are the most painful, as they involve tissue below the skin. Some wounds are even so profound that you can see through them, straight to the patient’s bones.
Complications from Bedsores
Bedsores, if left untreated can result in many horrific complications, including the following:
- Infection – stage 4 wounds go down to the bone, leaving a lot of bodily tissue exposed. Stage 4 wounds often result in infection.
- Sepsis – Sepsis is the body’s reaction to an infection reaching the bloodstream. It can progress to septic shock and trigger a dangerous drop in blood pressure or even death.
- Amputation – Wounds that occur in the hands, arms, legs, and feet can result in infection if not treated. Sometimes the physicians need to amputate the infected body parts to keep the infection from spreading.
- Gangrene – is a type of tissue death caused by not enough blood supply. Some wounds get so critical that the affected tissue cannot be saved and the person affected is permanently disfigured.
- Death – If a bedsore goes untreated, it can lead to infection, and even death.
Can you Sue for Getting a Bedsore?
One of the most frequent questions I get as a nursing home abuse attorney is: “can I sue the nursing home for my family member’s bedsore?”. Like most legal questions, the answer is that it depends.
Here are some pros and cons of bedsore lawsuits:
- Nursing home care regarded as bad across the country: Unlike typical medical negligence cases against a physician, nursing homes do not have a good reputation. There are indeed a good number of nursing homes that do a good job, but on the whole, nursing home care is terrible in America, and people know it.
- Pictures are worth 1,000 words: In many bedsore cases, the family or the nursing home has taken photos of the wounds. Anyone who has ever seen a stage 4 wound knows it cannot be unseen. It is a grotesque image that will stay with you forever. When juries see wound photographs, they have a visceral reaction that can result in significant verdicts. Nursing homes are aware of this.
- The elderly are respected: The elderly are a vulnerable and venerable population. Older adults deserve all of the protections our society can provide. When societal protections break down, and vulnerable people are affected, juries ward significant verdicts.
- In Maryland and Virginia, the damages are capped: In Maryland, the most a jury can award for pain and suffering in a bedsore case as of 2018 is $1,000,000.00. In Virginia, the total amount a jury can award, including lost medical bills, in a bedsore case is $2,000,000.00 This is a travesty and should be corrected, but the law is the law.
- Defense Attorneys Do Not Value Nursing Home Cases Properly: we frequently hear from many defense attorneys that nursing home cases are not worth what other personal injury cases might be worth because of the age of the victims involved. Nursing home residents have a lower life expectancy; however, that should not detract from the fact that a bedsore or other forms of nursing home neglect often results in extreme pain and suffering. Some defense attorneys use the case value argument to force cases into a lawsuit that should settle before filing a complaint.
What Makes for a Good Bedsore Case?
Not all bedsores should result in lawsuits. Some bedsores are unavoidable due to the patient’s preexisting medical conditions or age. However, the majority of bedsores are an indication of inadequate care. But a bedsore by itself is not enough to create a viable lawsuit. We must show that the nursing home breached what is called the “standard of care.” How do we do that?
- Poor Documentation – The most common way we prove bedsore cases is by demonstrating that the nursing home had inadequate documentation. If the facility lacks documentation of consistently turning and repositioning the resident, they will have a hard time defending the lawsuit.
- Photographs – Having wound photos can make or break a case. While sanitized wound measures may downplay the severity of a wound, a picture cannot be disputed.
- Family Testimony – It is crucial for the family of the injured resident to provide good testimony. If the family can testify that they visited the nursing home and observed the lack of care, it will significantly boost the odds of success in the lawsuit.
- Other injuries – When a nursing home resident gets pressure ulcers AND has poor nutrition, or another sign of neglect, the odds of success increase substantially. Typically, one form of negligence does not exist in isolation. That is why we look for signs of dehydration, falls, or poor nutrition when potential clients call us.
- Lack of Prior Medical Conditions – The most common defense in nursing home cases is that the resident was going to die anyway, or that the resident had so many medical conditions that the development of wounds was unavoidable. The best nursing home cases involve (relatively) healthy residents who were in the nursing home for rehabilitation. Complicated cases are those where the resident was in hospice care.
How Much Are Bedsore Cases Worth?
A former colleague at Ketterer, Browne & Associates, LLC conducted an analysis of jury verdicts and settlements in the D.C. Metropolitan region and other states from 2008 to 2018. According to this analysis, 39.77% of such cases result in settlements, 31.06% resulted in defense verdicts (i.e., the suing party lost), and 29.17% of cases resulted in plaintiff’s verdicts (the suing party won). The largest verdict was a $29 million award out of California in 2010. The average award in Baltimore was $262,552.00. Caveat – because so few nursing home neglect cases go to trial, finding accurate data is tricky. The numbers skew as they only report public jury verdicts and settlements that are not confidential. Most cases result in confidential settlements.
The Stages of a Bedsore Lawsuit
The first step in filing a bedsore lawsuit is obtaining the necessary medical records so the attorney can investigate the claim. Unfortunately, nursing homes do not always respond immediately to such requests. Merely gathering all of the relevant medical records can take up to 60 days if the nursing home is dragging its feet in producing the entire set of medical records.
Once the medical records have all been gathered, the attorney reviews them to determine whether the nursing home breached what is called the “standard of care.” The standard of care is only the consensus among medical providers who serve nursing homes about how to treat nursing home residents to treat and prevent wounds. If we believe there has been a breach of the standard of care, we will send the records to an expert witness. In many jurisdictions, getting an expert to approve of your lawsuit and state that there was a breach of the standard of care is a prerequisite to filing a lawsuit.
Virginia Nursing Home Bedsore Lawsuits
Under Virginia law, a plaintiff must have a certificate of merit from a qualified expert before filing a bedsore lawsuit. If the defense asks the plaintiff about it, the plaintiff must send a letter stating that a certificate of merit was obtained before filing suit. Under Virginia law, a nurse cannot testify about what caused an injury, or the extent of an injury, so a typical Virginia nursing home case requires a certificate of merit from a doctor and a nurse. The nurse states what the nursing home did wrong that breached the standard of care, and the doctor testifies about what harm that caused.
Virginia considers nursing home negligence cases medical malpractice cases under Virginia Code 8.01-581.20. Under Virginia Code § 8.01-581.15, total damages are currently capped as of June 30, 2018, at $2,300,000.00. Here is a chart of the amount of money you can recover in a Virginia medical malpractice and nursing home case by year:
There are only a few reported instances of Virginia bedsores lawsuits going to trial. The reality is, most lawsuits settle out of court.
Maryland Nursing Home Bedsore Lawsuits
Like Virginia, Maryland has a certificate of merit requirement for nursing home negligence lawsuits. Those looking to file bedsore lawsuits must overcome a very annoying procedural hurdle. Plaintiffs must first file something called a “statement of claim” with the Health Claims Alternative Dispute Resolution Office (HCADRO). There are very complicated procedures that must be followed in medical malpractices. These procedures were designed to limit the number of medical malpractice claims and ensure no frivolous suits are filed. HCADRO was also established in an attempt to reduce the cost of medical malpractice claims by forcing plaintiffs into arbitration.
HCARDO’s complicated processes include:
- Filing certificates of merit from qualified experts in each relevant specialty within 90 days of filing the Statement of Claim. The certificates of merit must specifically name each defendant who breached the standard of care and state that the departures in the standard of care were the proximate cause of the injury.
- Once all of the proper certificates of merit have been filed, the plaintiff may file a waiver to get the case out of HCADRO and file in the regular circuit court. The case must be filed within 60 days of filing the election to waive arbitration.
Maryland places a hard cap on recoverable non-economic (pain and suffering) damages in nursing home negligence lawsuits. Ketterer, Browne & Associates, LLC has achieved excellent results in bedsore lawsuits.
District of Columbia Bedsore Lawsuits
Under District of Columbia law, there is no cap on the amount of money you can recover in a nursing home negligence or bedsore case. There are, however, a couple of quirks to District of Columbia law. First, before filing suit, the plaintiff has to put the defense on notice of the lawsuit. Under D.C. Code § 16-2802, “Any person who intends to file an action in the court alleging medical malpractice against a health care provider shall notify the intended defendant of his or her action not less than 90 days before filing the action.” That is intended to allow the parties to attempt to negotiate a pre-suit settlement. In reality, that rarely happens. The good thing about filing a bedsore lawsuit in the District of Columbia is that there is no cap on damages. On the other hand, wrongful death damages are generally limited to funeral expenses for family members of the decedent. This limit dramatically reduces the value of wrongful death cases in the District of Columbia.