Episode 16

Suing a nursing home for bedsores


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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hey out there. Thanks for joining us. I’m Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers and we practice in the area of nursing home abuse and neglect in the state of Georgia, and we happen to be your co-hosts for the Nursing Home Abuse Podcast. Thank you so much for joining us. Just a little housekeeping to let you know, we are a video podcast, not just an audio podcast, meaning that you can download the audio and listen via Stitcher or iTunes or however you consume your audio podcast. You can listen to us on the way to work, exercising or doing another thing, cooking dinner. Or you can watch us. You can choose to see our lovely faces on our website at NursingHomeAbusePodcast.com or on our YouTube channel. And new episodes on this podcast are broadcast or available for download or viewing every Monday morning. So we’re happy that you’re with us and we’re excited to get started on today’s episode.

So on the agenda today – it’s all about the bed sore, the pressure ulcer, otherwise known as decubitus ulcer. And the reason we talk about this quite often in terms of this podcast is because it’s a serious problem and unfortunately, it is a common problem in long-term care facilities and nursing homes.

Smith: And in my mind, it is the epitome of negligence in a nursing home, because it is so often avoidable.

Schenk: Exactly. So Will, let’s talk about this. When we say bed sore, pressure ulcer, decubitus ulcer, what is it and how is it caused?

Smith: So they’re caused generally in two different ways – either through shearing, which is somebody rubbing against the sheets of their bed, which may seem like they’re very soft, but over time, they become abrasive and can break the skin down, and the other method – and a lot of times, these happen in tandem – there’s pressure on the skin and you’ve got pressure from the mattress and pressure from the bones, so oftentimes it happens on the sacrum, happens on the heels, happens on the elbows, anywhere where the bone or hard surface inside the body is pressing against the mattress and the skin is caught in between.

Schenk: So the pressure from body weight most the time.

Smith: Body weight, absolutely. Yeah, you don’t get pressure sores in outer space.

Schenk: Well I mean where the body’s weight is centralized.

Smith: Yes. Yeah, absolutely, where the body’s weight is centralized, and it cuts off oxygen to that particular area and oxygen carries nutrients and the blood carries nutrients and oxygen and everything else the skin needs to survive, because it’s an organ. And when it doesn’t have that, inflammation starts, and actually a bed sore starts with the stuff from the inside and works out.

So the skin dies. That part of the organ dies on the inside. It doesn’t have any oxygen, doesn’t have the nutrients, and it erupts as a sore, which gets worse and worse and worse. It can start off as a red spot. It can go as a stage one and it’ll go to a stage two, where there’s some gradual wearing down of the skin.

Schenk: When you stage, what do you mean by that?

Smith: The CMS has stages for a bed sore. In healthcare, they stage a bed sore based upon its size and depth, so a stage one is oftentimes a very small red spot.

Schenk: In other words, it’s a description of the current…

Smith: It’s a description of the current status of the bed sore, and it goes from least to worst, which is a stage one – you can get a stage one if you’ve got the flu and you’re in bed for a couple of days as a healthy adult, young adult. You’ve got a red spot. It’s typically not that bad and it happens. It’s almost never cause for a lawsuit because it’s something that goes away pretty soon and it’s pretty basic – all the way up to a stage four, which is a wound that’ll go straight to the bone and is definitely a cause for a lawsuit and is definitely a method that can kill elderly people, because it’s prone to infections that give them sepsis.

Schenk: So if you’re ever discussing with a CNA, a certified nursing assistant, or a hospital staff or nursing home staff regarding a bed sore and the word “stage” is mentioned, that’s what it means. It’s a description of where the wound is at any given time.

Now the interesting thing about staging is that there’s not a real hard and fast broad line rule, and you’ll see, at least in our experience, many times, oftentimes one wound care, one healthcare specialist, one individual providing treatment for that bed sore, that pressure ulcer, will stage it as a stage three, and then five minutes later, somebody might come along, view the same wound and stage it as a stage four and on and on, stage two versus stage one, that kind of thing, so it’s not as if this is a hard and fast description. It’s certainly something to keep in mind though.

Smith: Yeah, it is a general description. What you’re never going to do is confuse a stage one and a stage four.

Schenk: That is correct.

Smith: So when it comes to negligence-wise, we always like to go out for ourselves and look at the sore or we look at pictures of the sore. It’s kind of like the Supreme Court case where they’re talking about what is obscene material, and the Justice says, “I’ll know it when I see it.” Well what is a bed sore that needs to – what is a bed sore that warrants a lawsuit? You know it when you see it. They may call it a stage three. They may call it a stage four. But when you look at this wound and you are aghast, that is a bad bed sore, and we have seen too many of those.

Schenk: Too many of those. So speaking of that in terms of the staging and going from one to four or one to three, whatever the case may be, what is the interesting component of that is how long it takes for a bed sore to develop. And Will touched upon this a little earlier is the fact that these wounds start under the skin – it’s not as though once the skin is broken is when it starts. You’re talking about decay and death of tissue prior to there being this skin abrasion or skin opening. So these things can be quite dangerous prior to observation of the wound.

So the interesting component to this is how long does it take for a pressure ulcer to get from stage one to stage four, and the answer is it depends. It can take – a pressure ulcer can go to stage four in a matter of days, in a matter of weeks – it just depends on the factors. So there are definitely various risk factors that expedite the progression of a pressure ulcer.

Smith: Absolutely.

Schenk: And one of the more deadly ones is moisture. Incontinence.

Smith: Yes. If you’re incontinent and you have an adult brief on and you’re prone to incontinence, you’re going to have a lot of urine, moisture on your skin.

Schenk: Yes, incontinence. Moisture – moisture in general, but lots of time, moisture is a problem due to incontinence, that is the urine or loose stool or sweat. And the reason why moisture is bad is because moisture irritates the skin and makes the skin more susceptible to breakdown. And so some studies have found that fecal incontinence may pose a greater threat to skin integrity, most likely due to bile acids and enzymes in the feces. Irritation resulting from prolonged exposure to urine and feces may hasten skin breakdown and moisture may make skin more susceptible to damage from friction and shear during repositioning – and that’s from the Centers for Medicare and Medicaid Services.

So moisture from incontinence or moisture in general is a risk factor that’s going to hasten the progression of the wound, but you also have other things, like for example, obesity – obesity is a problem in terms of pressure for one…

Smith: Vascular disease.

Schenk: Vascular disease, co-morbidities that would prevent the body from fighting the wound or speed up the progression of the wound. So those are some of the reasons why a stage one might go to a stage four in a very short amount of time. With regard to stage one, stage four, what are the different procedures for treatment for bed sores at the various stages?

When a resident has a bed sore stage one or stage two, generally the number one preventative measure to reduce or eliminate that bed sore is habitual and constant repositioning, getting the resident off of that sore. So in the example of a sacrum ulcer on your tailbone, on your bottom, on your butt, then positioning that resident on their left side or their right side, generally wound care specialists in our experience, if the individual resident is at risk for a bed sore, that order to reposition to the left or the right side can be as often as every two hours. That’s how important it is to relieve the pressure from the wound side.

If the pressure ulcer is on another location, so for example, on the heel, then oftentimes the medical care professions can use devices like lifts. It’s a device that lifts the feet, the heel, the leg off of the surface itself to prevent, again, that pressure from being exerted onto the heel pressure ulcer.

Smith: Yeah, and there are various creams that they use, silver colloidal is a common one that they use on the skin to help it heal and regenerate, increasing protein in the resident’s diet to help them heal from the wound. Those are all methods they can use. And when it gets too bad, when it gets to the upper limits of a stage two, they usually, they should – actually, they don’t usually but they should – the good places usually have a wound care individual that comes in and their sole job in the nursing home is attending to various wounds. That’s all they do. They’re not passing out medicine. They’re not repositioning. They’re not cleaning the resident. They’re not feeding the resident. Their job as a wound care expert or a wound care staff is just to attend to that wound and to get it to regress back to a one and then nothing.

Schenk: That’s right. So that’s the nursing home’s duty once the wound has occurred. What is the liability for the nursing home to prevent the bed sore altogether? And this is a duty and a rule that has been codified by the Centers for Medicare and Medicaid Services. They’ve actually defined when a bed sore is a wound that can be avoided or a wound that is completely unavoidable, and that’s codified at 42-cfr-483.25 federal law C where they have pressure sores.

So they define pressure ulcers into two categories. One is avoidable, meaning that this is a wound that could have been avoided, and avoidable means the resident developed a pressure ulcer and that the facility did not do one or more of the following – evaluate the resident’s clinical condition and pressure ulcer risk factors, define and implement interventions that are consistent with resident needs, resident goals and recognized standards of practice, monitor and evaluate the impact the inventions or revise the interventions as appropriate. In other words, a wound is avoidable if the nursing home did not correctly assess the resident for his or her risk, put into place preventions and update those preventions as necessary.

Smith: You know, I think it’s important that we also note that it’s not just nursing homes that can be liable for bed sores. As a matter of fact, we had a case…

Schenk: Several.

Smith: Several – but one recently against a very prominent hospital, and we’ll never mention the names of defendants, against a very prominent hospital that failed to take care of a non-ambulatory bedridden patient and she developed a very severe bed sore that ended up being the cause of her death.

Schenk: That’s right. And so the standard – this is for CMS for long-term care facilities and that’s avoidable. So unavoidable would be the opposite basically, that the bed sore occurred despite the nursing home assessing correctly, implementing those interventions correctly and updating those interventions as necessary and the bed sores still occurred. And that’s going to happen. The unavoidable will happen oftentimes where the resident is in a condition where they’re in complete breakdown anyways, where there’s renal failures, there’s diabetes, Type 2 diabetes, Type 1 diabetes, or there are co-morbidities right along with it.

Smith: And I would say that it is very, very rare, given the entire group of long-term care residents, to develop while in the nursing home, to develop from stage one up an unavoidable bed sore. What ends up happening a lot of times is that the resident develops at least a stage one or the upper limits of a stage one while at home or somewhere else. They come to the nursing home and the nursing home throws everything they have at it, but they can’t stop what’s already started.

Schenk: That’s right. So in a typical lawsuit for a nursing home facility for bed sores where a patient or a resident is injured by a bedsore, the nursing home will have defenses, and that’ll be one of the defenses. And the number one defense in that situation is we did not start the fire,” that we did all we could but the bed sore was already there.

Other defenses that we see often are the fact that co-morbidities are the real reason that the bed sore developed, in other words, it’s an unavoidable bed sore because of co-morbidities. That’s a major defense that nursing homes often present.

Another one that nursing homes present in terms of defenses to these cases are where the resident can receive commands and instructions and refuses to reposition themselves.

Smith: So they’re not partaking in their own healthcare agenda, so they’re not helping reposition themselves and they’re perfectly capable of doing so.

Schenk: Kind of like the stereotypical guy that goes to the doctors smoking a cigarette and says, “What can I do to help my cancer?” The doctor says, “Stop smoking,” and they continue to smoke.

Smith: And again, this is one of those things we’ve talked about in a previous episode where you have to balance resident rights with resident health. I mean if I go into a resident’s room as a CNA or a nurse and I say, “Mr. Johnson, you’ve been on that one side for too long. You need to move over,” and he says, “Get out of here, leave me alone. I don’t want to turn,” what am I to do? I can’t grab his hands and have somebody hold his legs and tie him over to the other side of the bed so he doesn’t get a bed sore.

Schenk: So the standard of care in a situation like that more than likely will be that that CNA or the nursing home staff alerts the family if there is a family.

Smith: Absolutely. So he’s going AMA. He’s going against medical advice. They need to make notations of that. They need to call the family and say, “We have tried to get your father to turn.”

Schenk: “Get grandson Jimmy to tell Mr. Johnson he needs to turn.”

Smith: “He won’t do this.” So they need to take extensive notes. Any time – and that’s what I always look for – any time the nursing home claims, “Hey, we did everything we can,” okay, where are the notes on it?

Schenk: Yeah, the records need to reflect that.

Smith: If you’re just charting by exception, and what charting by exception is they only chart changes, so if you’re just going in there and you’re throwing your hands up going, “There’s nothing we can do,” and you’re not making notes on it, it might as well have not happened. So if it’s not on the record, it didn’t happen.

Schenk: That’s right. So that’s just one of the things that a law firm would look at in pursuing a bed sore care, what do the medical records say? How did the other co-morbidities or other risk factors play into the development of these wounds? How fast did the wound develop? These are just some of the other factors in a lawsuit for bed sores.

So in a nursing home abuse or neglect lawsuit that’s centered around a bed sore wound, there are different types of damages. That’s what in a general lawsuit you’re requesting money compensation – we call that “damages.” There are different avenues of damages in a typical bed sore case.

The first would be medical bills associated with the bed sores, so in other words, if the resident in the nursing home has to go to a hospital or other facility for treatment or other care, those bills would be requested in that lawsuit for the bed sores.

Smith: Right. Absolutely.

Schenk: Also you have the component of pain and suffering, at least in Georgia, which at this point in time, it’s not capped. The lawsuit can request the amount that would be equivalent to what the resident has suffered. And sometimes we get asked, “Well what happens if the patient has dementia or mental incapacity? You can’t know.” Well again, this is going to be something left to the aligned conscience of the jury.

So those are just some of the avenues, risk factors, what bed sores are, what damages you can ask for in a lawsuit, but we like to talk about bed sores quite often because it’s a problem. It’s not going away and it’s something we see often and we think that our viewer would be better off being more and more educated on.

Smith: And it’s one of those things that to me, like I said earlier, is the epitome of negligence because you have to imagine the environment in which somebody has a bed sore, and that is imagine your grandmother, your grandfather is immobile in bed, and they have a wound on their backside that starts from the skin and goes down into the bone, a gaping wound that is constantly filling with urine and feces that is infecting their body, that is infecting their blood, that is riddled with bacteria.

That is what’s going on for months at a time with some of these residents. That level of negligence, we haven’t quite gotten there – well that’s not true, we’re slowly getting there – but that level of negligence is almost criminal. And that’s something we’ll talk about in some upcoming podcasts, the criminal aspects of negligence, but in my mind, that is absolutely unforgivable. It’s torture.

Schenk: So at the end of the day, when you see the type of wound, you being the audience member, on your loved one in a nursing home, it’s important to document, talk to the staff and perhaps speak with an attorney.

Smith: Yeah, we had one – just real quick – we had one family member tell us and broke down in tears because he said the first time he saw his mother’s bed sore, he was under the impression that a bed sore was just a bruise or a rash, and when he saw what this woman had, and I’ll tell you, it was one of the worst I’ve ever seen, he broke down in tears. He broke down in tears telling us about it. It’s so dramatic.

Schenk: That’s right.

Smith: So be vigilant.

Schenk: Be vigilant. Yeah. And at the end of the day, if there is a lawsuit that gets filed and goes to conclusion, if it goes that far to a verdict, and I say that because segwaying our next segment in which we talk about nursing news, this news is out of Arkansas – Little Rock, Arkansas. We have here…

Smith: Home of Bill Clinton.

Schenk: That’s right, home of Bill Clinton. The State House of Representatives of Arkansas has recently proposed a ballot measure that would amend the state constitution to limit civil damages – we were just talking about damages – to limit civil damages, lawyer fees and the judicial branch’s authority over their courts. Specifically they’re proposing a constitutional amendment to the constitution of Arkansas. The constitutional amendment would cap damages in civil suit for harm that could not be measured in money, for example, pain and suffering, at 500,000. So in other words they’re saying in the bed sore case, if the bed sore went on for a year and it was the worst pain that the resident felt in their life, the most they could be compensated would be $500,000. And that’s a proposed amendment to the Arkansas constitution.

Representative – he is Republican – Representative Bob Ballenger, an Arkansas state representative, a co-sponsor of this proposed amendment said, “Businesses are being extorted because they come in and they’re faced with, ‘Do I go ahead and defend this even though I know it’s a frivolous lawsuit? Or do I pay it because in the end, a jury may very well slap me on a $10 million judgment that I can’t afford?’ For some small businesses, a $1 million judgment, that’s enough to put them out of business.”

So in other words, this representative in Arkansas is putting forth this proposed constitutional amendment limiting damages in civil cases because he’s saying that frivolous lawsuits are a problem and that businesses should not be expected to have to be worried about a $10 million judgment.

Smith: And it’s not the logic of that reasoning that we have a problem with. That would absolutely make sense if it comported with reality. It does not. We can tell you as plaintiff’s attorneys that we are very selective in the lawsuits that we take on, because lawsuits are extremely time-consuming, very expensive, and therefore very risky. Our entire business model is based on calculated risk. So we’re not just out there filing suits willy-nilly and taking on cases, spending money and just seeing what sticks. Nobody’s doing that.

Schenk: I’ve been doing this for quite a while now. I’m not saying this doesn’t happen, but I have never even heard of a lawsuit that was filed strictly for the basis of “We’re just going to see if this works” because there’s too much risk involved to the attorney.

Smith: And to the extent that those types of lawsuits happen, they’re not happening in the more advanced negligent cases like medical malpractice or nursing home malpractice. They’re simply not.

Schenk: But more importantly though to this representative’s point about we’re trying to prevent frivolous lawsuits, frivolous lawsuits are already weeded out by the civil justice system anyways. There are different stages that a typical lawsuit in whatever state you’re in, there are different timeframes in which these suits get kicked out. They get kicked out in the very beginning. They can get kicked out once discovery has concluded. They can get kicked out on the steps on the courthouse. There are so many avenues which a case that has zero merit and objectively has zero merit gets kicked out without the legislature having to resort to draconian measures to prevent frivolous lawsuits.

And I’m having like a Jerry Springer Final Thoughts on this, but in terms of this guy, and when I say this guy, the Republican Bob Ballenger, with regard to him saying that a business shouldn’t be worried about a $10 million judgment, it’s not as though somebody in a room throws a dart at a dartboard with different amounts of money. Any time that there is a verdict, a jury verdict, that means that between six and 12 peers of the defendants and plaintiffs have concluded that this is what the compensation for this particular act warrants. It’s not like an arbitrary and capricious thing.

So if I’m a business owner and I’m in a high-risk, profit-making arena such as owning several long-term care facilities, hey, I need to get insurance because I have the potential to do a lot of damage, and that should be taken into account. If a company worth 50 to 100 million to half a billion doesn’t have to worry about lawsuits beyond $500,000, there’s no incentive to do anything safety-wise, but that’s just me on my soapbox.

Smith: They have no incentive. And a good website to go check out, just I always point people to this website is it’s called the Liebeck Awards, and it’s based on Stella Liebeck, who was the elderly woman burned by a McDonald’s coffee cup that gave us the infamous McDonald’s coffee cup case, which everyone misunderstands, and plaintiff’s attorneys have to begrudgingly constantly explain to people.

Schenk: Scream it from the rooftops.

Smith: Yeah, it’s a great website because it dispels a lot of myths. It has some lawsuits which are crazy, but is also goes on to dispel. It’s like the Snopes of lawsuits. All those lawsuits that you think you hear about how some burglar fell through the roof and broke his leg and then sued the homeowners didn’t happen. It’s fake news. It was one of the very first versions of fake news, folks.

Schenk: And here’s a piece of news that is not fake, and that is we have reached the conclusion to this particular episode of the Nursing Home Abuse Podcast.

Smith: Now you’ve got your mojo back. You finally did a segway to the end.

Schenk: Yeah, it’s been a few weeks, but I finally got it.

Smith: Okay.

Schenk: So again, we appreciate you listening and watching. Again, if you’re new to the podcast, you can watch on our YouTube channel or our website, NursingHomeAbusePodcast.com, or you can download the audio on your favorite podcast application on your mobile device. And we again thank you for joining us. We’re happy that you’re here and we will see you next time.

Smith: See you next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website – NursingHomeAbusePodcast.com, that’s NursingHomeAbusePodcast.com. See you next time.

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