Anatomy of a Lawsuit: Legal Pearls for the Wound Care Provider

With more than 17,000 lawsuits for pressure injuries alone each year, legal action can be a very real consequence of practicing clinical medicine, especially for wound care providers.

During the Symposium on Advanced Wound Care (SAWC) Spring meeting, Lee C. Ruotsi, MD, ABWMS, CWS-P, UHM, and Joyce Black, PhD, RN, discussed treatment and documentation strategies to reduce the risk for litigation, and to defend the treatment provided in a legal setting, should that become necessary.

Dr. Black, a professor at the University of Nebraska Medical Center, in Waterloo, noted that to win a lawsuit, a patient’s lawyer must prove the following elements:

• a professional duty owed to the patient;
• breach of such duty;
• injury caused by the breach; and
• resulting damages, including wound, pain, disability and medical costs.

An attorney may not file a lawsuit if they do not see proof of all four elements on initial review.

According to Dr. Black, proper documentation is a critical piece in avoiding litigation. Typical consultation notes include history of the present illness, review of systems and the physical exam, followed by a diagnostic impression and treatment plan. If the patient’s condition is believed to be misclassified, the provider should document what the etiology is per the assessment and include supporting data.

Failure to accurately identify the etiology of the wound can sometimes come at the demand of the administration. Because treatment of pressure injuries is not reimbursed, Dr. Black said, there may be pressure to instead diagnose the condition as a diabetic foot wound, for example. However, the treatment that follows is not the same, which could present serious problems during litigation.

Another question that arises frequently in legal discussions is whether the condition was present on admission or unavoidable. Present-on-admission documentation allows for deep-tissue pressure injuries that are identified as evolving at the time of admission. For deep-tissue pressure injuries to be classified as “unavoidable,” said Dr. Black, the skin condition needs to be examined at the time of admission, but this is not limited to a 24-hour period, as these types of pressure injuries are not visible for 48 hours. Accurate assessment of risk, an appropriate plan of care and documentation of care are also required by the Centers for Medicare & Medicaid Services to establish a condition as unavoidable.

Costly Mistakes

According to Dr. Black, the ability to speak to patients openly and honestly is an essential skill for a wound care provider and may even protect a provider from medical malpractice. When healing cannot occur, for example, it is imperative that the patient or family be “kept in the loop,” she said.

“A family is going to be pretty upset if they thought a wound was minor or small and the patient ends up in the emergency room,” Dr. Black said. “If a family is taking pictures of the wound, then you should be taking pictures of the wound because those photographs will come into play.”

Although mistakes in the electronic health record rarely lead directly to patient harm, she added, those errors frequently result in lawsuits. Red flags in the EHR include changes in the record, gaps in time and information, improper wound measurements and incorrect wound terminology.

Finally, if a lawsuit goes to deposition or trial, the attitude of the provider can have a significant effect on the outcome. According to Dr. Black, a wound care provider should come across as caring and compassionate and express sincere concern about patient injuries.

“Lawyers pick up on even the most subtle hints of apathy and will exploit them,” Dr. Black noted. “You must have [the] right attitude in your chart, in your deposition and at trial.”

Under Pressure

According to Dr. Ruotsi, the medical director at Saratoga Hospital Center for Wound Healing and Hyperbaric Medicine, in Saratoga Springs, N.Y., pressure injury is the single leading source of medical-legal litigation, and long-term care facilities and hospitals are the main targets. Common pitfalls of pressure injury include the following:

• Failure to perform and document initial skin exam
• Failure to establish accurate staging (staging drives dressing and surface choices)
• Failure to implement proper wound care
• Failure to evaluate and implement plan for nutrition
• Failure to implement proper pressure redistribution surface(s)
• Failure to implement and document turning and repositioning schedule
• Delay in recognition and intervention for worsening wound

“It is useful and instructive to base your care and documentation on a hypothetical review of your own chart,” Dr. Ruotsi said. “If you reviewed your chart, would you be satisfied with your care?”

With this approach, providers should consider the things that they would not want to see in a chart, such as missing or incomplete initial skin exam, inappropriate or missing wound care orders, and failure to address skin issues in a timely fashion.

“At the end of the day, what we’re looking for is simply good-quality, well-documented patient care,” Dr. Ruotsi said. “Do the right thing; document that you did it; and be sure that your charting reflects your policies and procedures.”

This article is from the October 2021 print issue.