Episode 160

Can you sue a nursing home for pressure ulcers?

 

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In this week’s episode, we take a deep dive into a nursing home pressure ulcers. Nursing homes may be liable for injuries and death resulting from pressure ulcers if the injury was avoidable. This means that the nursing home failed to either assess the resident correctly, develop a proper care plan, or revise the plan along the way. If a nursing home does not check all these boxes, then the resident may bring a lawsuit. 

What are some nursing home pressure ulcer resources?

Hello out there. Welcome back to the Nursing Home Abuse Podcast. Thank you for joining us. We have another informative episode regarding pressure ulcers. If you’re new to the podcast, if you wanted to learn even more about pressure ulcers and bedsores in nursing home residents, I would encourage you to check out some past episodes. 

Episode 121: Five Ways to Prevent Pressure Ulcers in Nursing Homes

Episode 135: Understanding Pressure Ulcer Staging

Episode 138: What Prevents Pressure Ulcers from Healing?

Episode 152: Pressure Ulcer Assessments in Nursing Homes

Episode 151: Comprehensive Pressure Ulcer Prevention in Nursing Homes

So we are no stranger on this podcast talking about pressure ulcers, so if you want more information, check those other episodes out. 

What is a pressure ulcer and how do they develop?

But the first thing I want to address is what is a pressure ulcer and how do they develop? Essentially a pressure ulcer is a wound that occurs under an area, a bony prominence area on the body where pressure is placed. So that is typically going to be on the heel of the foot, on the buttocks and on shoulder blades where the body is laying and makes the most amount of contact with the surface and where there is a bone that kind of squeezes the skin and tissue between the surface and that bone. That’s typically where and how the pressure ulcer develops. It develops because the body needs blood. The body needs blood to deliver oxygen, to deliver nutrients to the tissue, to the muscle, tendons, ligaments, the whole deal. Body needs that unrestricted flow of blood, so when you have in those areas most often the bony prominence with pressure from the body on a surface, then the blood flow in that area is either going to be restricted or prohibited. And so when you don’t have that circulation, you’re not going to have oxygen and you’re not going to have nutrients flowing to that portion of the body, and as a result, over time – and this could be a matter of hours, it could be a matter of days – tissue and muscle begin to die and the skin opens up and an ulcer injury occurs. 

What are pressure ulcer stages?

So as we’ve talked about on other episodes, there’s a certain process on this on how we determine what stage in the process we are in. So stage one typically is where you see a little bit of un-blanchable red skin – blanchable meaning if you press down on the surface, usually it turns white or it gets discolored a little bit and goes back to normal after a few seconds, could be a minute. When it’s not blanchable, when you do that, the skin begins discolored but does not go back to normal. It’s usually stage one. Stage two, you see again it continues to be non-blanchable. The skin might open up a little bit. Stage three, you have the wound is now beyond the first layer of skin. You’re into the muscle and tissue. Stage four is the worst stage and that is where typically you’re through the first level of skin. You’re down into the bone and tendons can be exposed at that point. 

So that’s the quick rundown of the stages and that’s how pressure ulcers typically develop. Again, like I said, a pressure ulcer can go from stage one to stage two like that, stage two to stage three like that, and stage four, that could be a matter of hours to a day or two depending on the risk factors, depending on the chronic illnesses, depending on the overall physical condition of the resident.

How do nursing home pressure ulcers develop?

So how are nursing homes negligent in causing pressure ulcers? So a nursing home has certain obligations and these obligations come from federal regulations, state regulations and then just the clinical standards of care. Primarily the nursing home is responsible for doing a head-to-toe assessment of every resident that comes through the door – that includes understanding cognitive capacity, behaviors, mobility, how much assistance is required for activities of daily living. The whole deal of life in that nursing home should be assessed for that resident. This includes skin integrity. So the nursing home, for example, needs to go through and say, “Okay, how mobile is the resident?” because that’s a factor in skin integrity and pressure ulcer development. Is the resident incontinent in bowel or bladder? They run through the list of risks in that assessment. And at the end of that assessment comes out kind of like a threat level, a risk level. 

How does a care plan help prevent pressure ulcers in nursing homes? 

Based on that risk level, based on that threat level, a care plan is developed. A care plan, as we mentioned in previous episodes, is kind of like the blueprint, the schematics of how care interventions will be provided for that specific resident? So that would mean the assessment says this person is at a high risk based on their factors. They’re a high risk and so now that care plan is going to reflect that high risk by having many more interventions and treatment options than someone that is not a high risk for developing pressure ulcers. So the care plan will say something along the lines of, “The nursing staff will turn or reposition the resident every two hours. They will make sure incontinent care is provided immediately, that the resident will be informed of their risk of pressure ulcers.” Whatever the case may be, the assessment and the risk factors of the assessments will be reflected in the care plan, which will tell the nursing staff from shift to shift what to do to prevent pressure ulcers from being developed.

Then the nursing home needs to periodically assess and review that care plan. That’s my roundabout answer in terms of how a nursing home is negligent in causing pressure ulcers. That’s how they’re negligent is that they fail to do one of those three things or they don’t do one of those three things reasonably or under the standards of practice.

How do skin assessments help prevent pressure ulcers in nursing homes? 

So an example of that is failing to conduct an assessment appropriately. So we see in cases where a resident with limited cognitive capacity, someone that’s cognitively impaired that is not mobile, they have paralysis of some sort, muscle weakness and perhaps chronic illnesses like diabetes or history of stroke, are assessed as low risk when in fact typically someone that has those factors should be a high risk and consequently their care plan does not have the appropriate interventions in place to prevent them from getting pressure ulcers. So the assessment is faulty. That’s an example of negligence that would make a nursing home liable for the developing pressure ulcer. You guys did an assessment that was wrong, that was not up to snuff because this person should have been assessed as a high risk and therefore many more interventions should have been implemented based on that. And we can go on ad nauseum.

So the care plan can also be faulty or can be negligently put together. And then you have oftentimes the care plan is not effectuated so to speak, that the nursing staff, even though the care plan says to turn this individual every two hours, they in fact do not. So there is a litany of ways in which the nursing home can be liable or negligent, I’m sorry, in causing pressure ulcers. There’s no end to it. But essentially it comes down to proper assessment, proper care plan, revising that care plan and actually carrying that care plan out. If they are negligent in any of those aspects, then they can be responsible for any injuries resulting from that pressure ulcer.

Can you sue a nursing home for pressure ulcers? 

Can you sue a nursing home for pressure ulcers? Absolutely. A typical pressure ulcer lawsuit is based on the idea that the nursing home failed to do one of those things that we just mentioned there. They’re “negligent.” They breached the standard of care. So that’s what you allege in the lawsuit. There’s a couple other critical components to suing a nursing home for pressure ulcers and that is that you have to prove causation, meaning that just because a nursing home did something wrong, they had a faulty assessment, a faulty care plan or they failed in some way to carry out the care plan, even if they would have done all these things, would this individual have developed this pressure ulcer to begin with? Just because the pressure ulcer happened after the negligent action doesn’t mean the negligent action caused the pressure ulcer. But typically it does. So that’s the causation component you also have to have evidence of.

Who are the defendants in a nursing home pressure ulcer case? 

So in a pressure ulcer case, you typically can sue multiple defendants. So that’s going to be the actual nursing home itself. You can sue the administrator or the director of nursing. You can sue management companies. Management companies – oftentimes nursing homes will hire management companies to oversee training, to oversee the day-to-day operations of the nursing home, and sometimes based on the systematic failures of that nursing home, you can bring the management company in as a defendant as well. And of course you can bring in as defendants, if it’s a corporate, large corporate chain of nursing homes, maybe you can bring in the home office or the corporate office if there’s a systematic failure or evidence of a systematic failure, you can bring those in. 

So you would sue all of those defendants based on your theory of negligence and that the negligence caused the pressure ulcers, and that would be heard in a court of law depending. So just as a quick aside, we’re talking about arbitration in other episodes of the podcast. Arbitration is an alternative dispute resolution method. It is an alternative to suing in court. And oftentimes nursing homes will put that in their admission packages, meaning that when you sign your loved one into the nursing home, you are agreeing not to sue but you in fact are agreeing to arbitrate potential claims. So it’s possible that you might not be allowed to sue them. You would need to arbitrate those claims. And I would encourage you to check on those episodes on arbitration.

By and large, if a nursing home is negligent in causing the pressure ulcer, you can sue them. The defendants will be all those parties that I mentioned before. And then you spend a certain amount of time or your attorney spends a certain amount of time developing the evidence through depositions or discovery, and at some point, it usually takes two to three years to see one of these things all the way through to jury verdict, but that would be the point is that you are suing them in order to receive recovery in the form of money damages. That would be the point for suing a nursing home for pressure ulcers.

What type of compensation is awarded in a nursing home pressure ulcer case? 

So speaking of that, what types of compensation are you entitled to in a typical pressure ulcer bedsore injury lawsuit? So in Georgia, we typically divide the money damages, the money compensation into a couple of buckets. And the first bucket is what we would call special damages. These are damages that come with a price tag that are tangible, that have receipts as the kids say these days. But an example of that would be medical bills. So a nursing home, if they are liable for causing the pressure injury, if your loved one had to seek treatment in a hospital to be treated for those pressure ulcers, whatever medical bills are incurred, the nursing home would be responsible for compensating you for that. So medical bills is one.

  • SPECIAL DAMAGES: Another form of special damages, and this is not typical in nursing home cases although we do have some clients that are nursing home residents on the younger side, usually typically as a result of some type of need or physical therapy, but whatever extent, lost wages can be a measure of damage in a pressure injury case, although if your loved one most likely is not working, they’ve passed the working age, this is not going to be something they’re going to be entitled too. Only if someone is working and as a result of the pressure injury were not able to work, they would be entitled to lost wages. That does happen sometimes. It’s just not super common.

If your loved one happened to pass away, you can get funeral expenses. You can get the cost of burial. But at any rate, that first bucket is special damages – things that there is a definite number assigned to it.

  • GENERAL DAMAGES: The other bucket is what we call in Georgia general damages. These are damages that are essentially left open to the interpretation of the jury. And we typically call this pain and suffering damages. Pain and suffering can be anywhere from literally how much the pain costs, I mean how much the pain hurts you, like the level of pain, to how the injury has affected the residents’ lives. So for example, if the pressure ulcer caused the amputation of a leg, what’s it worth to not be able to walk anymore or what’s it worth to now forever, for the rest of your life, you have to be worried about your body opening up and having a hole in it. So these are things we say we are left at the enlightened conscience of a jury to determine. All these things are general damages and they all typically fall under the concept of pain and suffering. 

Pain and suffering is just what we have in Georgia a list of 10 to 13 different categories of pain and suffering. So you would ask a jury for both special damages and general damages. That’s the only thing typically a jury or a court of law is going to be able to afford you and your loved one is money to compensate you for the loss involved in that pressure ulcer. And I say that to differentiate any other type or relief or remedy, like injunctive relief. So for example, typically in a typical pressure or ulcer injury case, you’re not going to be able to ask the jury to fire an employee at a nursing home or demand that the nursing home update its policies or procedures. These types of non-monetary remedies as we call them typically are not going to something the jury will award. Literally the whole concept is the jury is going to determine how much money to give you, if any, to compensate you for your loss. So that is the compensation that you would be entitled to, the categories of compensation you would be entitled to.

Who brings the claim on behalf of a deceased person? 

So typically our clients are the nursing home resident, but we typically deal with loved ones acting on the behalf. That’s the next thing to address is can you sue on behalf of someone who’s died of pressure ulcers or can you sue on behalf of somebody who might not have died but does not have the capacity to sue on their own for pressure ulcers, and the answer is yes. That is extremely common.

In the state of Georgia, if a resident dies because of pressure ulcers, then another individual, which is typically the surviving spouse or the surviving child, will go to probate court and be appointed either as administrator of the estate, a representative of the estate, or if there’s a will, the executor, or the person who’s named as the executor, can bring a pressure ulcer case on behalf of the deceased person. 

We will be getting into the concept of wrongful death in another episode, which is a claim held by next of kin, but in terms of can you sue on behalf of someone else that has passed, yes, but that is typically going to be if you have the authority to do that, and the authority is being the administrator or the executor of the estate. And all that really means is that the person kind of lives on in the estate. So the estate is there to collect any outstanding assets, like any receivables, which would include claims for personal injury, and to pay debts. It’s kind of like a winding down of affairs for that person. So a claim for personal injury is one of the affairs that the estate has the authority to move forward with. So in a typical case in Georgia, you would see the case caption would say something like, “Jane Doe as administrator of the estate of John Doe as plaintiff.” So Jane Doe is acting on behalf of John Doe. The claim is held by John Doe but the estate is acting on behalf of John Doe because he’s no longer here. So that’s typically how that’s handled, at least in the state of Georgia. And we’ve talked about in previous episodes, we’ve talked about the probate process, setting up probate in order to bring a claim of personal injury.

How long does it take for a pressure ulcer case to resolve? 

That will be dependent on whether or not a settlement can be reached or whether or not the case needs to go forward in court or in arbitration. So there are some instances in which the attorney can gather all the evidence, put it together into a package and attempt to negotiate a settlement. And that process of negotiating a settlement can be anywhere from a few days to a few years negotiating a settlement. In my experience, we’ve sometimes settled cases within a few weeks or maybe a couple months after getting all the information and sending the package, the demand package essentially to the nursing home. However it seems that filing a lawsuit is most often the case that you’ll have to do that because no one is obligated to settle anything. It’s generally in everybody’s best interest to do that but no one is obligated by law to settle. 

So typically you have to file in order to get the ball rolling. So after you file the lawsuit, if it goes all the way to a jury verdict, that can take anywhere from two to three years. And depending on whether or not something is appealed and you can appeal something at the beginning, appeal something after trial, that go up on appeal and come back down and force you to maybe redo the case. So it’s definitely, at least in the state of Georgia, you’re not getting a resolution through a jury verdict anywhere before two years usually, usually two to three years. It’s just unfortunate it’s just part of the process that it takes a long time to get justice.

So that’s not to say that just because you file the lawsuit means that you can’t settle along the way. And that’s often how it works is that you maybe try to negotiate a settlement. It does no good. You file the lawsuit. You continue to gather evidence and maybe you negotiate the settlement sometime in there along those lines.

Can you mediate a nursing home pressure ulcer case? 

So one more thing in that is in Georgia oftentimes the judge is going to make you, it’s going to mandatory, that you mediate a settlement. So there are oftentimes where you can mediate a settlement before that two years, that three years before you get to the jury verdict.

So how long does it take to resolve? Again, it depends. You can negotiate a settlement or it has to be filed and go through a lengthy court battle where it’s either settled or you get a final jury verdict.

So that’s pressure ulcer injuries, suing for pressure ulcer injuries in Georgia, the nutshell, abridged, Cliff Notes version. If you enjoyed the contents of this episode, be sure to like and subscribe. If you are watching this on YouTube, be sure to leave a comment. Let us know if there’s any type of topic you’d like to see addressed in an upcoming episode. We’d be happy to hear from you. 


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