Providers should educate affected patients and their families about “unavoidable” pressure ulcers using a standardized process to help fend off related litigation, two seasoned medical malpractice attorneys have recommended.
Emily L. Fernandez and Alan B. Friedberg of Wilson Elser Moskowitz Edelman & Dicker LLP propose advising patients about it being “more likely than not” to develop unavoidable pressure ulcers. They also recommended providers document that process with a More Likely Than Not form, even though that form would not work as a strict liability waiver.
“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,” the attorneys wrote June 5 in the National Law Review. “These high volume pressure ulcer cases are problematic for healthcare 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.”
The Agency for Healthcare Research and Quality has reported 2.5 million patients per year experience pressure ulcers (also called pressure injuries), costing the healthcare system between $9.1 billion and $11.6 billion. In addition, the agency found more than 17,000 lawsuits are related to pressure ulcers annually, making it the second-most common healthcare claim after wrongful death.
Fernandez and Friedberg argue providers themselves could help reverse the “inexorable cycle” when it comes to PUs, particularly those likely to occur among patients with certain medical conditions, comorbidities, or treatments that put them at high risk during a stay.
They recommended facilities develop policies listing qualifying conditions or circumstances that should trigger use of the form at admission, when it could be signed by the patient or a healthcare proxy, and train its staff on how to both educate patients and document those conversations with progress notes and the signed form itself.
While the authors targeted their article toward hospitals, the same advanced notification principle could be applied to nursing homes, which often treat patients with hospital-acquired pressure ulcers or end-of-life wounds known as Kennedy terminal ulcers.
“A jury should not be the first to learn that a patient’s ulcers were unavoidable,” they wrote. “The patient should be the first to know, in real time, and preferably before a pressure ulcer ever develops.”
The full article includes a sample “more likely than not” form that providers can customize to their facility, as well as a list of possible conditions that make a patient likely to need education.
