Skin Care - Articles Compiled From

Legal Eagle Eye Newsletter for the Nursing Profession

 

Skin Care: Fatal Sepsis From Decubitus Ulcer, Court Finds Nursing Facility Not Liable.

  Federal regulations require a nursing facility to ensure that a resident who enters a facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that pressure sores were unavoidable.  A resident who has pressure sores must receive necessary treatment and services to promote heaing, prevent infection and prevent new sores.

  However, in a civil mal-practice lawsuit these regulations do not shift the burden of proof to the healthcare provider to prove that loss of skin integrity was unavoidable due to the patient’s clinical condition.  The patient or the patient’s family still must show what the standard of care is and prove that it was violated.  The development and progression of the patient’s sacral decubitus lesion does not prove negligence.  The record contains ample proof the facility undertook a comprehensive assessment and performed all reasonable interventions for the patient, notwithstanding the unfavorable and unfortunate outcome. COURT OF APPEALS OF LOUISIANA February 18, 2014

  The patient was admitted to the nursing facility at age eighty and taken to the hospital five years later where she soon died at age eighty-five.  Three months before she was sent to the hospital the family were informed by the nursing home staff that the patient had a decubitus ulcer and would be receiving treatment from an outside wound care nurse.  A month later they were told she was responding well to treatment.  Two months after that they received a call she was being taken to a hospital E.R. Five days later she passed away.

  The Court of Appeal of Louisiana dismissed the family’s lawsuit.  The patient was eighty-five years old and extremely debilitated.  She had end-stage Parkinson’s, dementia, diabetes and hypertension, needed assistance to eat, was totally dependent for transfers, was totally incontinent of bowel and bladder and had contractures that had progressively worsened.  Over time all of these conditions, according to the Court, compromised her skin integrity and increased the risk of skin breakdown.  In fact, on admission to the nursing home the patient was already so debilitated that surgery had to be declined in favor of conservative management of a femoral neck fracture and the patient was classified as "Do Not Resuscitate."

  The nursing home was treating her lesions appropriately, started nutritional supplements as adjunct therapy, saw some improvement and then when the wounds deteriorated brought in an outside consulting wound care nurse and bought the patient a specialty mattress.   Deterioration of skin integrity, even to the point of sepsis which threatens the patient’s life, in an elderly and highly debilitated patient, in and of itself, does not prove negligence, without proof of some actual departure by the patient’s caregivers from the applicable standard of care, the Court said. Pecue v. Plantation Mgt., 2014 WL 667489 (La. App., February 18, 2014).

Skin Care: Court Rules Facility Was Not At Fault.

  The son of the now-deceased patient has been a registered nurse for twenty years, but he has no background in wound, ostomy or incontinence care. He can testify as a lay witness, but not as an expert. COURT OF APPEAL OF LOUISIANA May 14, 2014

  The elderly patient developed pressure sores during her stay in the nursing home.  After her death, her son as her heir sued the nursing home for damages for the pain and suffering his mother endured from the pressure sores.   The nursing home countered with affidavits from two nursing experts, one the home’s director of nursing and the other an outside nursing consultant certified in wound, ostomy and continence care.  The experts admitted that the patient developed two Stage II lesions.   Nevertheless, the only relevant fact was that her care was appropriate in all respects.  She was assessed as at-risk for loss of skin integrity, and when breakdown started she was provided with a pressure-reducing mattress and positioned with the head of the bed always elevated.  Frequent skin assessments were added to the care plan and documented as being carried out.   Her care further included an effort to increase her nutrition and specific ointments were used to treat her wounds.

  The Court of Appeal of Louisiana dismissed the son’s lawsuit.  The Court expressly discounted the son’s affidavit as an expert witness for the case.  The son could testify as an ordinary lay witness.  However, the only testimony in the case that came from qualified experts detailed how the nursing home complied with the standard of care.  That mandated a ruling in the nursing home’s favor. Ladart v. Harahan Living Ctr., __ So. 3d __, 2014 WL 1923199 (La. App., May 14, 2014).

Skin Care: Court Sees Violation Of The Standard Of Care.

  There is no consistent evidence in the medical chart that the plan of care formulated on admission and subsequent modifications were ever initiated by the nursing facility.  COURT OF APPEALS OF TEXAS March 19, 2014

  Family members filed suit on behalf of the deceased resident’s probate estate against the nursing facility where he had spent his final days.   The lawsuit alleged negligence by the facility’s nursing staff which led to severe pressure ulcers.

  The Court of Appeals of Texas accepted a physician’s expert opinion that the facility did violate the standard of care.   According to the family’s expert, the Braden Scale was used on admission to assess the patient’s potential for loss of skin integrity and development of pressure sores, but the scoring showing he was not at risk had to have been inaccurate because in fact he later developed pressure lesions.  Later in his stay his risk factors were reassessed and his care plan was modified for incontinence care to be provided every two hours, for staff assistance to be pro-vided for transfers and for more attention to be given to his needs for adequate nutrition and hydration.   He was also supposed to be provided with a special pressure-reduction mattress and a gel cushion to go under his bottom in his wheelchair.  

  The telling point for the Court was that the medical chart did not contain progress notes or other documentation that the interventions called for in the care plan modification were ever actually provided to the patient. Cedar Senior v. Nevarez, __ S.W. 3d __, 2014 WL 1047039 (Tex. App., March 19, 2014).

Substandard Skin Care: Court Finds Grounds For Lawsuit.

  The patient’s family’s nursing expert currently practices and teaches in the field of obstetrics.  That fact does not disqualify her as a nursing expert in the specific subject areas of identifying patients at risk of loss of skin integrity and detailing appropriate nursing interventions for their care.  She is currently licensed as a registered nurse and has over thirty years of nursing experience which has included caring for cardiovascular, internal medicine, surgical, urology, obstetrical, oncology and radiology patients, including elderly patients who required prevention, dressing, treatment and care of skin wounds and pressure ulcers.  The family’s nursing expert has her own practice as a consultant who deals with subjects that include direct patient care of skin wounds and writing nursing practice and procedure manuals for skin care.

  It is not relevant that she has never actually treated a ventilator patient with comorbidities of respiratory failure, deconditioning, pulmonary fibrosis, shortness of breath and acute respiratory distress syndrome. COURT OF APPEALS OF TEXAS July 25, 2013

  The sixty-nine year-old patient was admitted to a facility for ventilator-dependent patients.  His diagnoses included respiratory failure, deconditioning, pulmonary fibrosis, shortness of breath, acute respiratory distress syndrome and malnutrition.   He arrived from the acute-care hospital alert but on a ventilator with a trache, IV, Foley catheter and a feeding tube.   The nursing notes on admission documented there was no breakdown of skin integrity, wound, redness or discoloration anywhere on his body.  Nevertheless, his Braden Scale score of 10 put him at high risk for breakdown of skin integrity.

  He soon developed Stage II lesions on his sacrum and buttocks for which dressings with Santyl and later hydrocolloid were ordered.  As his overall condition deteriorated he became incontinent of urine and then of feces.  He passed away eight weeks after entering the facility.

  In the family’s lawsuit the Court of Appeals of Texas accepted the opinions of the family’s nursing expert as an adequate foundation for allegations of negligence.  The nursing expert was able to find specific departures from the standard of care that stood out directly from the nursing documentation.  Although the Santyl dressings were ordered by the physician to be changed at least on a daily basis, not every day was a dressing change documented.  Similarly the hydrocolloid dressings which were ordered later to be done every three to five days were not documented as being done on schedule.  The nursing expert was also able to pinpoint numerous dates in the chart when the patient was not repositioned every two hours as ordered and as required as a basic nursing intervention for a high-risk patient.  On two dates it was actually documented when the patient was turned that he had not been turned for ten hours.  A physician gave an opinion that failing to perform these nursing interventions caused progression of loss of skin integrity. Select Specialty v. Simmons, 2013 WL 3877696 (Tex. App., July 25, 2013).

Skin Care: Nursing Documentation Leads Court To Dismiss Negligence Lawsuit.

  The patient’s chart contains nursing documentation that he was repositioned every two hours on 177 of his 183 days in the hospital.  There were also several progress notes each day that the patient was cleaned after he wetted or soiled himself.  There were dozens of references to his infected catheter site being cleaned. UNITED STATES DISTRICT COURT CALIFORNIA April 17, 2013

  The patient had fallen at home and had spent three months in and out of various nursing homes and other hospitals.  He was already malnourished, had pressure sores on his heel and tailbone and had developed infections before being admitted to the VA hospital where he died after a six month stay.  After his death his widow and daughter filed a lawsuit against the US Government for alleged negligence at the VA hospital.  The US District Court for the Central District of California dismissed the case.

  The Stage IV pressure lesion on his tailbone and a Stage III lesion on his left heel were staged and documented on admission.  While at the VA he developed new pressure lesions on his left and right hips and a new lesion near the base of his penis.  The legal standard of care for a patient with pressure sores is that the patient must receive necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.  The legal focus is not on the out-come per se but on the quality of care and how well it was documented.

  The Court did not accept the testimony of the family’s medical expert that the VA hospital nurses neglected to follow the nursing care plan which required them to reposition the patient every two hours and keep his skin clean, dry and free from prolonged un-relieved pressure.   Instead, although the nursing documentation was not perfect, the Court was able to find specific references in the chart to the patient being repositioned every two hours on 177 of the 183 days he spent in the hospital.  There was also detailed documentation of the nurses and aides cleaning the patient numerous times each day after he wetted or soiled himself.  His infected urinary catheter site was cleaned at least once per shift, with documentation that caregivers were wearing gloves and masks, which the Court took to mean that good aseptic technique was being used.  The Court was unable to find any concrete evidence that the patient’s nursing care was substandard or any logical basis to conclude that substandard care caused the eventual outcome. Bryant v. US, 2013 WL 1680498 (C.D. Cal., April 17, 2013).

Skin Care: Nurse Disqualified As Expert In Critical Cardiac Care.

  The patient’s nursing expert was allowed to testify about routine skin assessment and care for hospital patients in general.  However, her professional nursing background did not include the care of critically ill patients.  Her testimony as to the standard of care for critical care nurses was not a sound basis for a legal case against the hospital. SUPREME COURT OF ALABAMA November 18, 2011

  Several days after cardiac-bypass surgery the nurses in the cardiac critical-care unit discovered a pressure blister on the back of the patient’s neck and a Stage I decubitus ulcer on his coccyx.   After being released from the hospital the patient went to another hospital for plastic surgery for the sacral pressure ulcer.  He sued the hospital where he had his bypass for negligence allegedly committed by the critical care nurses and obtained a $300,000 jury verdict in his favor.

  The Supreme Court of Alabama threw out the jury’s verdict.   The critically ill patient was at times at risk of death.  His critical-care caregivers were struggling with post-operative bleeding and he was on a ventilator much of the time.   In deciding how and when to reposition him the nurses had to prioritize potentially life-threatening considerations.   The generic hospital-nursing mandate to turn every patient every two hours advocated by the patient’s nursing expert incorrectly oversimplified the complexities involved in his care, the Court said. Spring-hill Hosp. v. Critopoulos, __ So. 3d __, 2011 WL 5607816 (Ala., November 18, 2011).

Skin Care, ICU Patient: Court Accepts Nurse’s Expert Opinion On Nursing Standard Of Care.

  A nurse is qualified to give an expert opinion in court defining the standard of care for nurses and identifying specific breaches of the standard of care by the patient’s nurses in their treatment of the patient.  The nurse must be able to satisfy the court that he or she has knowledge, skill, experience, training or education pertaining to the disputed issues in the lawsuit that qualify him or her to give an expert opinion on those subjects.  

  A nurse, however, is not accepted by the courts as qualified to give an opinion on the medical issues involved in linking a breach of the standard of care by a nurse to the harm suffered by the patient.  That requires testimony from a physician.  Being licensed as a physician does not automatically qualify someone as an expert witness.  In this case the patient’s physician/expert had experience caring for patients with pressure ulcers, writing orders for nurses caring for such patients and evaluating nursing interventions.   He is able to demonstrate familiarity with the medical consequences of substandard skin care. COURT OF APPEALS OF TEXAS November 16, 2011

  The patient, then sixty years of age, was admitted to the hospital for work-up of a fever which was found to be related to MRSA infection originating at the site of her renal dialysis shunt.  The patient’s medical diagnoses included end-stage renal failure, hypertension and diabetes.   In the hospital the patient’s situation progressed to septic shock accompanied by respiratory failure which required that she be placed on a ventilator and transferred to the ICU.  Restraints were ordered in the ICU for both upper extremities.   There were also standard hospital admitting orders in the chart for pressure-ulcer precautions.  Treatment in the hospital lasting more than a month was successful in resolving the MRSA-related sepsis, but after discharge the patient still had multiple pressure ulcers which started and progressed in the hospital that required ongoing aggressive treatment.

  The patient sued the hospital for negligence related to the skin care she received while a patient in the hospital.  The Court of Appeals of Texas ruled that the expert opinions of a nurse and a physician submitted along with the filing of her lawsuit, as required in Texas and many other states, correctly stated the applicable standard of care and pointed out multiple breaches of the standard of care by the hospital’s nurses.

  Nursing Expert’s Opinion  Nursing Standard of Care

  1. Perform ongoing nursing assessments of the patient to identify actual and potential problem areas;

  2. Make appropriate nursing diagnoses, i.e., alteration in comfort, alteration in hydration, alteration in skin integrity, alteration in elimination patterns, potential for urinary tract infection, etc., based on ongoing assessments;

  3. Develop a comprehensive Plan of Care which sets out identified (actual or potential) problems and interventions designed to prevent adverse outcomes from known problem areas;

  4. Implement Plan of Care;

  5. Evaluate patient’s response to implemented Plan of Care; and

  6. Update Plan of Care consistent with the patient’s response.

  Standard of Care  Skin Care / Pressure Ulcers

  1. Conduct a pressure ulcer admission assessment for every patient using Braden Score Scale or Norton Score Scale;

  2. Reassess risk for all patients daily using Braden or Norton;

  3. Inspect skin of high-risk patients daily;

  4. Manage moisture;

  5. Optimize nutrition and hydration;

  6. Reposition every two to four hours with 30 degree  lateral tilt;

  7. Minimize pressure;

 8. Once a pressure ulcer develops, the wound should be properly documented and photographed for the medical record: Color, size, depth, drainage, odor and progression should be documented.

  Notify physician.

  This Patient:

  1. This particular patient should have been turned every two hours to prevent damage to the skin;

  2. Proper bedding, i.e., an air mattress should have been provided to prevent pres-sure ulcers;

  3. Once pressure ulcers developed the wound should have been properly documented and photographed for the medical record: Color, size, depth, drainage and odor. The physician should have been notified;

  4. Upon discharge, wound care instructions should have been provided to the family and home health nursing staff; and

  5. A therapeutic mattress should have been ordered for use at home.

  The physician/expert went on to detail how failure to turn the patient every two hours prolonged the pressure on her sacrum and coccyx which diminished blood flow and caused damage to the tissue.   If the progression of the lesions had been documented by the nurses the treating physician would have known to write orders for appropriate alterations of the care plan. Hillcrest Baptist v. Payne, 2011 WL 5830469 (Tex. App., November 16, 2011).

Skin Care, Skilled Nursing: Civil Monetary Penalties Upheld.

  Federal regulations for skilled nursing facilities require the facility to complete a comprehensive assessment of a resident after it is determined, or should have been determined, that there has been a significant change in the resident’s physical or mental condition.  Significant change can mean a major decline in the resident’s health status that will not normally resolve itself without further intervention or implementation of standard disease related clinical interventions, that has an impact on more than one area of the resident’s health status and which requires interdisciplinary review or revision of the care plan.

  Federal regulations require that a resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable.  Federal regulations require that a resident who is unable to carry out activities of daily living receive the personal services necessary to maintain good nutrition, grooming and personal and oral hygiene. UNITED STATES COURT OF APPEALS FIFTH CIRCUIT June 17, 2011

  A nursing facility was cited and assessed a civil monetary penalty for violations of three separate Federal regulations in the care of one particular resident, which was upheld by the US Court of Appeals for the Fifth Circuit.  The resident developed two Stage II pressure ulcers, then two more two weeks later.  A week after that one worsened to Stage III and a week later another worsened to Stage IV.   Facility staff did consult with the dietician to see if changing the resident’s diet might help with the problems with her skin.   The Court saw this as an indication there was a realization that there had been a significant change in her health status requiring a comprehensive reassessment of her needs, which was never done.

  The initial care plan on admission two years earlier called for lotion to the extremities twice daily, weekly skin assessments, turning and repositioning every two hours, an air mattress, whirlpool baths, nutritional supplements and use of a Hoyer lift for transfers.   Basically none of this being done was documented in the chart.   A pressure sore can be considered unavoidable and not a violation of Federal regulations, despite the outcome, if routine preventive care was provided. However, according to the Court, routine care being in the care plan and routine care actually being done are two different things.

  The Court also ruled that call bells not being accessible to this resident and several others was a violation of Federal regulations that mandate help with ADL’s for residents who need help.   The call bell has to be in reach, not on the floor or on the bed where the resident cannot reach it.  It is also a violation to provide a bottle of eye drops to a resident without assessing the resident’s ability to self-administer. Windsor Place v. US Dept. of Health & Human Svcs, 2011 WL 2437804 (5th Cir., June 17, 2011).

Skin Care: Court Refuses To Blame Nurses, Sees Care As Adequate In All Respects.

  The family’s lawsuit was filed one day less than one year after the patient died in the nursing home.  However, the family’s law-suit directly takes issue with the amputation of the patient’s leg, which occurred fourteen months before the patient died.  The lawsuit claimed that substandard care for the patient’s skin-integrity issues led to bedsores which progressed to serious lesions which necessitated the amputation.   The negligence alleged in the lawsuit had to have occurred before the leg was amputated, which was out-side the time limit for the statute of limitations by the time the lawsuit was filed.

  The court must dismiss any lawsuit if the statute of limitations has expired, even if the statute of limitations imposes a harsh penalty on persons who have waited too long to file an otherwise valid suit.  However, there was no negligence by the nursing staff at this nursing home, though technically that is not the basis for the court’s ruling. COURT OF APPEAL OF LOUISIANA March 1, 2006

  The family of a deceased nursing home resident sued the nursing home for negligence leading to skin breakdown leading to amputation of the patient’s leg.  The Court of Appeal of Louisiana ruled against the family because Louisiana’s one-year statute of limitations had expired before the lawsuit was filed.  Nevertheless, the court went on to say there was no violation of the standard of care by the nursing staff.   That would have meant dismissal of the family’s lawsuit even if it had been filed on time.

  The evidence showed that the patient was ambulatory when she entered the nursing home and was assessed as able to turn herself in bed.  Her physicians diagnosed and documented renal failure, hypertension and peripheral vascular disease.   These are conditions which can predispose a patient to lower extremity skin breakdown.  The court found documentation that the wound-care nurses were seeing to the patient’s needs on a regular basis per the physician’s orders. The family’s attorney’s own nursing experts testified they could not fault the wound-care nurses.   A separate sacral skin lesion which started at the nursing home actually healed completely due to the nurses’ efforts.  The medical evidence tended to prove the skin lesion on the leg began and progressed because of the patient’s peripheral vascular disease and not because of substandard nursing care, the court stated.

  There were no physician’s orders to turn the patient, so there could be no issue of nursing staff failing to carry out such orders.   In skin-care cases, the court noted in passing, failure to document frequent turning is an all too common legal liability issue. Alexander v. Amelia Manor Nursing Home, Inc., __ So. 2d __, 2006 WL 472289 (La. App., March 1, 2006).

Skin Care: Nursing Care Found Substandard, Court Upholds Civil Monetary Penalties.

  Code of Federal Regula-tions Title 42, Section 483.25(c) states:

  Pressure sores.  Based on the comprehensive assessment of a resident, the facility must ensure that —

  1. A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and

  2. A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

  A civil monetary penalty of $500 per day is appropriate for the eleven days during which these residents’ care was found substandard. UNITED STATES COURT OF APPEALS SIXTH CIRCUIT UNPUBLISHED OPINION August 24, 2004

  The US Court of Appeals for the Sixth Circuit, in an unpublished opinion, upheld a civil monetary penalty of $10,500 ($500 x 11 days) levied by state department of health surveyors who inspected the long term care facility on behalf of the US Centers for Medicare & Medicaid Services (CMS) for violations of the CMS participation requirements relating to pressure sores.  The Court went into detail as to why each of five residents in question did not receive the required level of care.

  The Court rejected the argument that pressure sores on a resident’s leg were clinically unavoidable due to her medical condition which placed her at high risk for skin breakdown.   Her pressure sore condition was not addressed by the nursing staff until ten days after pressure sores were first ob-served.   A special mattress ordered by her physician was not provided, in direct violation of her care plan.   The Court agreed that an obese total-care patient who is incontinent presents a special risk of skin breakdown, as the resident must be allowed to sleep only on her back.

  However, inspectors observed an aide feeding the resident her breakfast while she was still lying on her back on urine-soaked sheets.  That is substandard care, the Court ruled, which likely explains the avoidable pressure sores on her back.   The resident had a pressure sore on his big toe.  The facility could not show that it was unavoidable, but argued that since there was no harm other than the lesion itself, the facility should not be penalized.   The Court reiterated that the focus of the Federal CMS regulations is to prevent patterns of care which have the potential for harm.  Not providing the best practicable pressure relief is considered substandard care.  

  For two additional residents inspectors observed that the pressure relieving devices required by their care plans were not in use.   One was to have a heel cradle boot while in bed and the other was to have a cushion under him while sitting in his wheelchair.   Each was seen on at least one occasion without their protective devices and each had a pressure sore on the related area of his body. Livingston Care Center v. Dept. of Health & Human Services, 2004 WL 1922168 (6th Cir., August 24, 2004).