Here’s the scenario. Susan is your long-time client. She is a pleasant woman in her fifties. One day she comes to see you and tells you that about eight months ago, she made the difficult decision to admit her mother to a nursing home. Before that, mom had been living independently in her own apartment. Mom was doing alright, but then suffered a minor stroke, fell and broke her leg. After that, she could no longer get around or to the bathroom by herself and needed help rehabilitating her leg. Her heart condition was not life-threatening, but after the stroke, her mental health deteriorated and she was often confused and disoriented. She needed more care and supervision than Susan and her family could provide on their own. Susan located a facility that accepted Medicare and advertised “24-hour” skilled-nursing care, and she made arrangements for her mother’s admission.

Less than eight months later, Susan’s mother died as a result of cardiac shock triggered by a bacterial infection that spread to her bloodstream. After spiking a temperature, the nursing home transferred Susan to the local hospital. For the first time, Susan saw a baseball-sized gaping hole of rotting flesh all the way to the bone on her mother’s buttocks. This was determined to be the site of the infection that led to her mother’s death.

Susan was shocked. She had visited her mother almost every day, and, although her mother’s confusion continued to worsen, there were no signs of deterioration in her mother’s health until the abrupt end.

Susan comes to you now looking for answers. Her anger at the nursing home is exceeded only by her own feeling of guilt for placing her there. She wants to know if she can make a claim against the facility.

To answer Susan’s question requires an understanding of (1) what a pressure ulcer is and why it occurs; (2) the laws and regulations pertaining to pressure ulcers that apply to skilled nursing facilities; and (3) the facts that culminated in her mother’s death.

WHAT IS A PRESSURE ULCER?

The skin is the largest organ in the human body, and preventing skin breakdown and associated medical problems is a critical part of nursing home care. Elder residents may be at risk for skin breakdown due to decreased mobility, confinement to bed or a wheelchair, poor circulation, diabetes and other medical conditions.

OBRA guidelines define a “pressure ulcer” as “any lesion caused by unrelieved pressure that results in damage to the underlying tissue(s).” The regulations further explain that “[a]lthough friction and shear are not primary causes of pressure ulcers, friction and shear are important contributing factors to the development of pressure ulcers.” F-Tag 314. Pressure ulcers are typically designated by “stages,” ranging from Stage I to Stage IV. OBRA guidelines describe the stages as follows:

Stage I: An observable, pressure-related alteration of intact skin whose indicators include changes in skin temperature; tissue consistency; sensation; and/or a defined area of persistent redness.

Stage II: Partial thickness skin loss, which is superficial and presents as an abrasion, blister or shallow crater.

Stage III: Full thickness skin loss involving damage to, or necrosis of, subcutaneous tissue that may extend down to, but not through, underlying fascia.

Stage IV: Full thickness skin loss with extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures (e.g., tendon, joint capsule).

Skin breakdown is not inevitable. In most cases, skin breakdown is preventable with proper assessment, planning and follow through. Federal and State nursing home regulations require that the nursing home be proactive to prevent skin breakdown, or if it has begun, to promote healing.

THE LAW PERTAINING TO PRESSURE ULCER CARE

Both Federal and State nursing home regulations mandate that a nursing home “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.

42 CFR § 483.25(c) (emphasis added).

The guidelines define “unavoidable” to mean that the resident “developed a pressure ulcer even though the facility had evaluated the resident’s clinical condition and pressure ulcer risk factors; defined and implemented interventions that are consistent with resident needs, goals and recognized standards or practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate.” OBRA, F-Tag #314.

In other words, if a facility cannot show that it (1) assessed the resident (2) developed an appropriate plan to prevent (or heal) skin breakdown; (3) implemented the plan; and (4) revised the plan as conditions changed, the facility cannot show that the development or failure of a pressure ulcer to heal was “unavoidable.”

This is true despite the fact that a resident may have had a number of risk factors making him or her susceptible to pressure ulcers. If risk factors are present, it is even more critical that the facility perform an adequate assessment of those risks and implement a plan to prevent skin breakdown. If and only if that is done is a pressure ulcer “unavoidable” under State and Federal regulations.

ASSESSMENT

It is impossible to create and implement a plan to address a resident’s risk of skin breakdown if the risks are not identified in the first place. In a nursing home, it is the initial and periodic resident assessments that trigger the appropriate care-planning protocols designed to meet the specific care needs of the resident. By definition, if assessments are not done, or if they are not done adequately, the resulting plan of care will be deficient.

Pressure ulcers do not evolve from Stage I to Stage IV overnight. If a Stage III or IV ulcer appears in the chart as a sudden onset, it is a good sign that the facility did a poor job assessing the resident.

DEVELOPING AND IMPLEMENTING AN INDIVIDUALIZED PLAN OF CARE

Once a resident has been assessed as a risk for skin breakdown, what kind of planning and implementation is required? Rule number one is “do no harm.” Shearing or frictional forces against the skin are a common cause of skin breakdown. Nursing home staff should be trained in methods to transfer a resident into and out of bed or a wheelchair that do not shear the resident’s skin.

Because pressure ulcers are caused by unrelieved pressure on the soft tissues, any sensible plan must include strategies to relieve pressure. Special pressure-relief cushions, mattresses and heel protectors must be utilized when necessary.

Most important, a resident who is confined in bed or a wheelchair must be turned and repositioned frequently enough to relieve pressure. A standard protocol might call for staff to turn and reposition a resident every two hours. But the appropriate frequency depends upon the resident’s individual needs. If more frequent turning and repositioning is required, the nursing home must ensure that it is done—even if it requires bringing in more staff.

The regulations require that the “facility must have sufficient nursing staff to provide nursing or related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual care plans.” 42 CFR § 483.30. There must be sufficient staff to provide twenty-four hour care. See id. at § 483.30(a)(1).

HEALING SKIN BREAKDOWN

If a resident developed a pressure ulcer (either before of after entering the nursing home), look to see whether the nursing home took the necessary and appropriate steps to promote healing. A common defense is that the resident was in a state of decline, and the worsening of the skin condition was, therefore, “unavoidable.”

That may or may not be true. Again, the failure to heal cannot—by law—be “unavailable” unless the facility assessed the problem, planned to address it and implemented the plan. If the nursing home contends that it was medically impossible for the subject pressure sore to heal, look to see whether the resident had other sores that did heal. If another sore healed, the resident was clearly capable of healing—with adequate care and follow through.

HYDRATION & NUTRITION

Adequate hydration and nutrition is critical to the body’s ability to heal from skin breakdown. Without proper nourishment, the body lacks the building blocks necessary to repair itself. Thus, careful monitoring and attention to a resident’s diet is a critical part of skin ulcer prevention and healing.

A facility is required to “ensure that a resident (1) maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible; and (2) receives a therapeutic diet when there is a nutritional problem.” 42 CFR § 483.25(i)(1)&(2). The regulations further dictate that to ensure proper nutrition, the facility “must employ a qualified dietician” and offer substitutes of similar nutritional value to residents who refuse food served. 42 CFR § 483.35(a), (d)(4).

How can you tell if a resident was not properly hydrated or nourished? Look to see whether the resident lost a significant amount of weight. Check the lab reports to see whether the resident showed signs of dehydration. Look to see what the staff charted in terms of the resident’s food consumption and fluid intake and output. If the chart indicates that that resident ate 100 percent of each meal during a month in which the resident lost 20 percent of her body weight, something does not add up.

Look to see whether the resident received a properly-balanced diet with adequate protein. Protein is necessary to rebuild damaged tissue. Check the lab results to see whether the resident’s albumin levels are low—a sign of protein deficiency. If there is a question about whether the resident was properly nourished, check to see whether the facility provided a consult with a qualified dietician. If there was a diet plan, look to see whether the staff implemented it. Does the chart confirm that the resident was provided meal replacements or supplements when necessary?

DUTY TO INFORM FAMILY/PHYSICIAN

The facility must also ensure that the medical care of each resident is supervised by a physician, and that the resident is seen by the physician (or a practitioner supervised by the physician) at least once every thirty days for the first ninety days after admission, and at least once every sixty days thereafter. 42 CFR § 483.40(c) – (e). If a resident had a worsening pressure ulcer, look to see whether the facility kept the resident’s attending physician and the family informed of the resident’s worsening condition. If the wound continued to worsen, look to see whether the facility referred the resident to a wound care specialist.

THE FACTUAL ANALYSIS

Susan’s case most certainly demands further investigation. As a recent stroke victim with a broken leg, Susan was at risk for skin breakdown because her limited mobility and confinement to bed and a wheelchair. The fact that nursing staff never notified Susan of the pressure ulcer is almost certainly a violation. Either the nursing home failed to assess her mother’s change in condition or it failed to communicate that significant change to Susan. She had a right to know about the change in her mother’s condition and to participate in creating a new plan of care to address the problem (or to transfer her out of the facility if it could not adequately care for her mother).

Susan’s mother did not have any medical condition that would make the development of pressure ulcers inevitable. Although she did have a stroke, there is no evidence of peripheral vascular disease—and even if there were, the buttocks are not on the “periphery.” When skin breakdown occurs in the area of the buttocks or lower back, it often results from the resident being forced to sit or lie in his or her own urine and feces for a prolonged time. Since Susan’s mother needed assistance getting to the bathroom, there is a possibility that his occurred in her case.

CONCLUSION

Elder nursing-home residents are often at some risk for skin breakdown. Federal and State law mandates that nursing home facilities take a pro-active approach to prevent and heal pressure sores. Accordingly, when pressure ulcers develop or worsen, the nursing home is legally responsible, unless it can show that it did everything that could have been done to prevent or heal the ulcer. Unfortunately, in too many instances, nursing homes do not devote the attention or staffing resources necessary to meet this critical responsibility. Call our firm for legal advice.