As published in The Chicago Daily Law Bulletin
Last column reviewed basics of bed sore cases. Here, top plaintiffs’ and defense lawyers, Margaret Battersby Black and Laura Lally give their thoughts.
Who is the defendant, is the threshold question. Nursing facilities have different standards and exposures including attorneys’ fees.
Last column reviewed basics of bed sore cases. Here, top plaintiffs’ and defense lawyers, Margaret Battersby Black and Laura Lally give their thoughts.
Who is the defendant, is the threshold question. Nursing facilities have different standards and exposures including attorneys’ fees.
Next is the origin of plaintiff’s injuries. Did plaintiff come in without and leave with bedsores? Battersby Black said, “If the answer to both of those questions is yes, then I start getting excited.”
“The worst answer is, if she came in with bedsores from home because then it's hard. Although, if you come into a facility with bedsores because you need treatment for them and they're small or early stage sores, and then they get completely out of control and infected, I would take that case if I could prove that happened because of a bad plan, or a lack of carrying out the plan or reassessing.”
Battersby Black also pointed to the number of defendants as an important factor. “I like fewer defendants because then there’s less argument about who did what. When the prior facility said nothing about bedsores and the other says the patient came in with a serious ulcer, I think to myself, ‘Yikes! I know what that facility's defense is going to be. Why isn't it documented at the other facility?’ Right then, I know that if I'm going to take that case, I have to look very carefully at the first 24 hours to see if I can find anything that's conflicting or that looks like maybe they're kind of backdating it or doing some defensive charting, and if not, I better bring in that other facility at a minimum as a respondent in discovery to get some information.”
Lally agrees that cases involving multiple facilities present more complex issues, but also defense opportunities. “I look at the procedures in the week before they were discharged from the prior facility,” she said. “Were they on their back for a long time where there's an argument that it's not a bedsore, it's a deep tissue injury from being on their back?”
As to the deep tissue defense, Battersby Black sees opportunity. “I'm taking that case all day,”.
Lally spoke about the crucial importance of the patient intake assessment. “When they come in,” Lally said, “nursing homes are required to do a skin assessment, but some organizations are better than others. Some of my insureds have been more careful about admitting people on weekends or late at night because we want to have the staff to actually do an adequate admission.
“I find my own insureds kind of shooting themselves in the foot where they don't do a careful admission and then the next day or two days later, the wound nurse comes around and does find skin problems that probably predated the admission. You don't get to say, ‘Well I did it quick and sloppy because it was 11:00 on a Sunday night.’ [Plaintiffs are] going to make you pay for that.”
Lally is generally more concerned when the sore developed on the butt than if it did all down the feet, because there are more defenses to developing on the feet.
“A sore on one heel: that would be my favorite [case to defend] because one would assume both of the heels have been subject to the same pressure or the same treatment and if one breaks down, the other doesn't break down,” Lally said.
“If I can't have a heel or I can't have a foot, I would rather have a sore on both hips than one hip because then you can't argue, ‘Well you never turned them.’ Clearly you were turning them if both sides broke down. That's the good. What I don't like--of course, the same thing that Margaret likes--an in-house, stage four, full thickness, developed ulcer on my [client’s] watch.
“I know even if there is good charting, even if there's good care planning, that's going to be tough. If there's a bedsore that developed in-house, if the Department of Public Health has given a violation for it, if there are some nasty pictures to it, those are all pretty challenging on my side.
Battersby Black suggested the ideal plaintiff’s fact pattern. “I like sores on the backside for my cases better because I think there are way fewer defenses about how that happens. I don't necessarily accept this as a defense, but there are parts of the body that could have compromised blood flow, the extremities, and there could be documented studies or proof that those areas are really vulnerable.
“I typically use that as a way to say, ‘Well so you knew when this person came in here that those heels were going to be really susceptible and yet where's the plan?’ There are some more medical defenses available to sores that form on feet, toes, heels, sometimes tops of feet because people can have conditions like vascular insufficiency or diabetes or other conditions [like] peripheral vascular disease that can make it tougher to prove those cases for the plaintiff.”
Lally was clear about one point. “The most challenging thing and the thing that I try to educate my people over and over and over is a deal breaker for me, where I'm stomping, spitting mad, is an intentional falsification of records. It doesn't happen often, but boy oh boy, nobody gets away with it. It's usually pretty obvious and it makes the case indefensible. I've tried educating with, ‘it's wrong, it's illegal, you should never do it for those reasons,’ and now my point is ‘you will get caught, you will get found out, you will be sued personally. You're going to be in court and depositions, and your organization is going to have to report you to the nursing body.’
“The way these medical records are,” Lally continued, “they're so complex now that if one person thinks they can make a little falsification and get away with it, they won't. It's documented differently three other places. That's my absolute ... it happens rarely, but when it happens I'm mad.” And the case is essentially lost before it’s begun.
More advice from our experts next article.
“The worst answer is, if she came in with bedsores from home because then it's hard. Although, if you come into a facility with bedsores because you need treatment for them and they're small or early stage sores, and then they get completely out of control and infected, I would take that case if I could prove that happened because of a bad plan, or a lack of carrying out the plan or reassessing.”
Battersby Black also pointed to the number of defendants as an important factor. “I like fewer defendants because then there’s less argument about who did what. When the prior facility said nothing about bedsores and the other says the patient came in with a serious ulcer, I think to myself, ‘Yikes! I know what that facility's defense is going to be. Why isn't it documented at the other facility?’ Right then, I know that if I'm going to take that case, I have to look very carefully at the first 24 hours to see if I can find anything that's conflicting or that looks like maybe they're kind of backdating it or doing some defensive charting, and if not, I better bring in that other facility at a minimum as a respondent in discovery to get some information.”
Lally agrees that cases involving multiple facilities present more complex issues, but also defense opportunities. “I look at the procedures in the week before they were discharged from the prior facility,” she said. “Were they on their back for a long time where there's an argument that it's not a bedsore, it's a deep tissue injury from being on their back?”
As to the deep tissue defense, Battersby Black sees opportunity. “I'm taking that case all day,”.
Lally spoke about the crucial importance of the patient intake assessment. “When they come in,” Lally said, “nursing homes are required to do a skin assessment, but some organizations are better than others. Some of my insureds have been more careful about admitting people on weekends or late at night because we want to have the staff to actually do an adequate admission.
“I find my own insureds kind of shooting themselves in the foot where they don't do a careful admission and then the next day or two days later, the wound nurse comes around and does find skin problems that probably predated the admission. You don't get to say, ‘Well I did it quick and sloppy because it was 11:00 on a Sunday night.’ [Plaintiffs are] going to make you pay for that.”
Lally is generally more concerned when the sore developed on the butt than if it did all down the feet, because there are more defenses to developing on the feet.
“A sore on one heel: that would be my favorite [case to defend] because one would assume both of the heels have been subject to the same pressure or the same treatment and if one breaks down, the other doesn't break down,” Lally said.
“If I can't have a heel or I can't have a foot, I would rather have a sore on both hips than one hip because then you can't argue, ‘Well you never turned them.’ Clearly you were turning them if both sides broke down. That's the good. What I don't like--of course, the same thing that Margaret likes--an in-house, stage four, full thickness, developed ulcer on my [client’s] watch.
“I know even if there is good charting, even if there's good care planning, that's going to be tough. If there's a bedsore that developed in-house, if the Department of Public Health has given a violation for it, if there are some nasty pictures to it, those are all pretty challenging on my side.
Battersby Black suggested the ideal plaintiff’s fact pattern. “I like sores on the backside for my cases better because I think there are way fewer defenses about how that happens. I don't necessarily accept this as a defense, but there are parts of the body that could have compromised blood flow, the extremities, and there could be documented studies or proof that those areas are really vulnerable.
“I typically use that as a way to say, ‘Well so you knew when this person came in here that those heels were going to be really susceptible and yet where's the plan?’ There are some more medical defenses available to sores that form on feet, toes, heels, sometimes tops of feet because people can have conditions like vascular insufficiency or diabetes or other conditions [like] peripheral vascular disease that can make it tougher to prove those cases for the plaintiff.”
Lally was clear about one point. “The most challenging thing and the thing that I try to educate my people over and over and over is a deal breaker for me, where I'm stomping, spitting mad, is an intentional falsification of records. It doesn't happen often, but boy oh boy, nobody gets away with it. It's usually pretty obvious and it makes the case indefensible. I've tried educating with, ‘it's wrong, it's illegal, you should never do it for those reasons,’ and now my point is ‘you will get caught, you will get found out, you will be sued personally. You're going to be in court and depositions, and your organization is going to have to report you to the nursing body.’
“The way these medical records are,” Lally continued, “they're so complex now that if one person thinks they can make a little falsification and get away with it, they won't. It's documented differently three other places. That's my absolute ... it happens rarely, but when it happens I'm mad.” And the case is essentially lost before it’s begun.
More advice from our experts next article.