Turning the Tide on Pressure Ulcer Litigation

Many pressure ulcers are unavoidable, but patients-turned-litigants do not seem to know that fact even when they develop a pressure injury incident to treatment that saved their lives. These high-volume pressure ulcer cases are problematic for health care providers and insurers alike. The volume of pressure ulcer cases is not a result of prevalent negligence, but of a dearth of aggressive defense strategies leading to costly settlements in cases in which good care was provided and ulcers were foreseeable and unavoidable. This inexorable cycle is untenable and, quite frankly, unfair to providers and insurers; it must be reversed. 

Hospitals should, collectively, take action to deter plaintiff attorneys from eagerly accepting these high volume cases that currently require very little legal analysis and cost from the plaintiff attorney’s perspective (using duplicative pleadings and motions and the same expert on multiple cases). 

Managing Expectations and Implementing Strategy

How can we do that? We can do that by managing expectations during treatment and in a way that promotes a defense at trial. Hospitals should no longer wait until a lawsuit is filed to defend good care that results in a foreseeable and often unavoidable condition—a pressure ulcer. A jury should not be the first to learn that a patient’s ulcers were unavoidable. The patient should be the first to know, in real time, and preferably before a pressure ulcer ever develops. Thus, the defense is proactive, starting in the hospital or other clinical setting. 

How do we implement that strategy? Very simply, advise the patient (or the family when the patient is not competent) and document it. Any free-form narrative or progress note can accomplish this goal, but a uniform practice would increase the likelihood those are done. In the interest of uniformity, consider templating and utilizing two forms: 1) implementing a “More Likely Than Not” form to be completed on or near admission; and 2) including pressure ulcer(s) as a risk of any procedure in every single consent form. More details and examples of language for these two forms are below. 

“More Likely Than Not” form

• What is it? A new, standard form to be given to every patient who, because of their medical condition, co-morbidities, treatment, and/or expected treatment is at high risk for a pressure ulcer on or at any point during the admission.

• Who should sign it? Most patients. A non-exhaustive list of patients with potentially qualifying conditions and circumstances are patients with: a current pressure ulcer; limited mobility; immobility; obesity; diabetes; peripheral vascular disease; cancer; chemotherapy treatment; a PEG or feeding tube; low albumin; syncope; compromised oral intake; medical condition that may require/does require intubation, placement of multiple lines, and anticipated immobility while in the hospital (essentially every surgical patient); every high fall risk patient; every patient who refuses turning and positioning even once; generally non-complaint patients; incontinence; history of pressure ulcer; etc. A facility can devise a policy listing qualifying conditions and circumstances to consider for further guidance on whether to use the “More Likely than Not” form. Note: The family or health care proxy should be asked to sign this form if the patient cannot. 

• When should it be signed? As soon as possible. This form should be explained and signed on admission or as soon thereafter as it is recognized that the patient has or is expected to have any medical condition or co-morbidity that may make the development of a pressure ulcer more likely than not. Signing this form before an emergency develops or as soon as possible after an emergency will assist in obtaining the signed form before a pressure ulcer develops.

• What should it say? Suggested language: 

I understand and accept that I will more likely than not develop pressure injuries because of my increased risk for pressure injury resulting from my medical history, medical condition(s), medical treatment, and/or expected medical treatment. __ (patient initials)

I understand and accept that any pressure injury I develop is unavoidable and nothing any of my health care providers do or do not do in their judgment can guarantee that I will remain free of pressure injury given my personal medical condition(s) and situation. __ (patient initials)

All of the above was explained to me in detail, and I understood the explanation. I had the opportunity to ask questions, and any questions I had were answered to my satisfaction. __ (patient initials).

_________ signature of patient/representative  _______ date 
_________ signature of witness                       _______ date

The above language does not guarantee a lawsuit will not be brought, nor does it guarantee a win at trial. However, it will ultimately be tested at trial. If used, this language will provide defense counsel an advantage at trial. The key phrase “more likely than not” in the form is intended to combat plaintiff’s burden of proof at trial, which is “more likely than not” that negligence occurred. Thus, the form on its face supports plaintiff cannot possibly meet his/her burden. The key word “judgment” in the form is used because, if a provider uses judgment in treating a patient, then the defense can argue the court is obligated to instruct the jury on the pro-defense, judgment charge PJI 2:150.1 

Also relevant to trial strategy, a blow-up of the “More Likely Than Not” form could be useful demonstrative evidence during cross-examination of plaintiff and, if admitted into evidence, could be used in the jury room during deliberations. A further consideration may be for the hospital to designate a specific physician assistant or nurse practitioner to provide and obtain patient signatures on this form, so a particular provider will gain experience in completing the forms and potentially become an experienced witness for depositions and trials. The “More Likely Than Not” form may also assist in the defense of subsequent treatment providers, such as the rehabilitation or long-term care facility that accepts the discharged hospital patient who develops an initial or additional pressure injury at that facility. 

The “More Likely Than Not” form is not an admission that the standard of care will not be followed, but it is instead a recognition that patients are different and pressure ulcers happen even with good care. It should be noted the “More Likely Than Not” form does not conflict with Braden Scale Scoring because the score is a mere snapshot assessment of the current presentation of the skin. By the time the skin shows signs that a pressure ulcer is unavoidable, a pressure ulcer already likely developed. Also, a current assessment of the skin ignores planned future treatment. For example, a pressure ulcer will “more likely than not” develop if the plan is to intubate that day for airway protection, even when the Braden Scale Score for the same day is normal. 

Pressure injury is a risk to be included in every informed consent form 

Every hospital consent form for any surgery resulting in any degree of immobility whatsoever should document that a pressure injury is a risk of the procedure. A pressure ulcer is, in fact, a reasonably foreseeable risk of immobility within the meaning of Public Health Law 2805(d), which is the statute that governs informed consent in New York State. Patients should be advised of the risk of developing a pressure ulcer and should be asked whether they agree to surgery accepting that risk. 

An investment in in-service trainings with defense counsel, departmental meetings, evaluation of internal policies, and training during medical school, among other efforts, will be needed to implement this massive defense effort uniformly. Ideally, the initial cost in this investment will eventually realize significant cost-savings by the expected outcome—managing patient expectation so they do not even seek to bring lawsuits and managing plaintiff’s attorneys’ expectations that they can commence suit and collect a low six-figure settlement doing very little work.

Overall, the paradigm shift needs to be that every at-risk patient admitted to a facility should expect to develop a pressure ulcer and be happy when they do not. 

This article originally appeared on Wilson Elser.

About the Authors:

Emily L. Fernandez is a partner at Wilson Elser. emily.fernandez@wilsonelser.com