Legal Implications for Wound Care Part 1: Wound Assessment
By Alicia Jenkins, BS, RN, CWCN
The care of patients with wounds, along with any related documentation, has significant legal implications for providers. Twenty percent (20%) of all medical claims in the United States and more than 10% of settlements are wound-related (1). Pressure injuries impose a notable burden on patients, the healthcare system, and the legal system. More than 17,000 pressure injury-related lawsuits are filed annually (2). A settlement's value depends on the patient’s age, wound severity, pain and suffering, and subsequent complications. A settlement for a patient who recovers relatively quickly may average between $150,000 -$300,000. For a pressure injury that becomes infected or requires hospitalization, the settlement maybe $500,000 or more. For a pressure injury that directly contributes to a patient’s death, a wrongful death suit cost up to $1 million (3).
According to “Dr. Google,” the most common allegation in malpractice litigation against wound care providers is a failure to administer appropriate care. Of course, in order to administer appropriate care, one needs to have accurately assessed the patient, their risks, and their wound. Let’s discuss the “who, what, when, where, and why’s” around wound care and how they affect the legal risks associated with wound care.
Who is responsible for wound assessment? RNs, physical therapists, physicians, and physician extenders provide ongoing assessment and oversight, while LPN/LVNs monitor and carry out wound care according to protocol and physician orders.
What aspects of wound care are problematic when it comes to legal risk?? Comprehensive wound management means ALL aspects of patient care are assessed and addressed to promote optimal outcomes. Correct identification of wound etiology, treatment based on evidence-based best practices, and appropriate local wound care are imperative. However, if total patient care is not addressed and documented, it can prove to be detrimental in a lawsuit. For example, significant pain and suffering awards have been won in court due to a lack of attention to pain management (4). Punitive damages for lack of nutritional assessment and related interventions to support wound healing have been awarded. If a patient is identified as at risk for a poor outcome, interventions must be put in place to mitigate that risk. Unintended weight loss is a concern but also not uncommon due to illness or as the patient approaches the end of life. As an example, if a patient is weighed inaccurately on admission at 220 pounds and a week later an accurate weight of 190 lbs is documented, the record would show an inaccurate 30-pound weight loss in a week. It is difficult to defend a weight loss that seems improbable, and the care provided by the healthcare provider now appears poor or questionable.
What are you doing when your assessment of wound progress changes significantly? Reporting relevant changes to the patient's physician/provider in a timely manner is necessary for any facility-acquired or worsening wound when signs or symptoms of infection have been identified or other concerns have been noted. Additionally, the physician should be notified if the plan of care needs updating due to a change in the patient’s condition, for example, when a Braden score falls from 18 to 12. Simply recording a Braden risk assessment score in a timely manner and according to facility policy is not sufficient. You must document that you took appropriate action to address the issues that are placing the patient at increased risk.
What is needed when you’re faced with a non-healable or unavoidable wound?
The Centers for Medicare and Medicaid Services state that an accurate assessment of risk along with an appropriate plan and documentation of care are required for a condition to be established as unavoidable. The existence of a non-healable or unavoidable wound should be clearly acknowledged in the plan of care and supported by documentation in the patient’s medical record. The SCALE (Skin Changes At Life’s End) tool should be used for accurate assessment of patients receiving palliative or hospice care. Establishing an unrealistic outcome in the care plan for a patient with a non-healable wound (i.e., the wound will be healed in 90 days”) is impossible to defend in a lawsuit. Always discuss expected healing outcomes with the patient, caregiver, and provider, establish mutually agreed upon goals, and clearly document your conversations. When the patient and caregivers are included in decision-making, they are less likely to sue.
When, where, why, and how did the wound develop?- Was the condition present on admission or acquired under your watch? Was it unavoidable? Are you assessing and reassessing risk and wound status in a consistent and comprehensive manner, following best practice recommendations for timeliness and care? Most settings have guidelines or policies in place as to the frequency of skin and risk assessment.
As previously mentioned, there are more than 17,000 lawsuits for pressure injuries alone each year, and being understaffed or failing to provide adequate training does NOT absolve a facility of its duty of care. Common mistakes include:
Failure to perform and document a thorough skin assessment on the initial exam. Timing of wound identification can determine if the wound is present on admission or considered acquired due to poor timing of an assessment.
Failure to complete an admission risk assessment (i.e. Braden Scale score) in a timely manner (within 8-24 hours of admission depending on the setting) and not repeating the risk assessment at regular intervals. Another problem area is inconsistencies among those completing the Braden Scale. Scores should not fluctuate widely between one staff member and another; for example, one day documenting the Braden score of 13 and the next day a score of 19.
Failure to implement an individualized evidenced based care plan based upon the Braden subscores with targeted interventions in the needed areas.
Failure to accurately document the stage of pressure injury. (Staging drives not only the choice of dressing materials but also qualifies the patient for the appropriate pressure distribution surface.)
Failure to implement proper wound care, dressing change choices, and frequency. Are you accurately identifying and addressing the wound etiology with an evidence-based care plan that is individualized to a patient’s assessed needs?
Failure to evaluate and implement a plan for nutritional support.
Failure to implement proper pressure redistribution surface(s)
Failure to implement and document a turning and repositioning schedule.
Failure to document patient noncompliance with the plan of care. Documentation should include the exact statements made by the patient, the education provided, and the patient’s response to education.
Failure to recognize or intervene when a wound is deteriorating (5). I read a great quote by noted wound physician Lee Ruotsi, MD, FACCWS, UHM: "Do the right thing; document that you did it; and be sure that your charting reflects your policies and procedures (5)."
Pfaff, J. A., & Moore, G. P. (2005, September 1;16:97–108.). Ed wound management: Identifying and reducing risk: 2005-09-01: AHC... Relias Media | Online Continuing Medical Education | Relias Media - Continuing Medical Education Publishing. Retrieved July 31, 2022, from https://www.reliasmedia.com/articles/83579-ed-wound-management-identifying-and-reducing-risk
Berlowitz, D. (n.d.). Preventing pressure ulcers in hospitals: A toolkit for improving ... AHRQ. Retrieved July 31, 2022, from https://www.ahrq.gov/sites/default/files/publications/files/putoolkit.pdf. Accessed October 14, 2018.
P., F., B., L., H., T., F., S., & B., A. (2021, June 14). How much is an average Bedsore lawsuit settlement? Sinel & Olesen. Retrieved July 31, 2022, from https://nycbedsorelawyer.com/how-much-is-an-average-bedsore-lawsuit-settlement/#:~:text=In%20cases%20where%20bedsores%20are,region%20of%20%24500%2C000%20or%20more
Krasner, D. L. (2021, January 12). Wound care lawsuits: Overcoming 6 common difficulties. WoundSource. Retrieved July 31, 2022, from https://www.woundsource.com/blog/wound-care-lawsuits-overcoming-6-common-difficulties
Doyle, C. (2021, October 14). Anatomy of a Lawsuit: Legal Pearls for the Wound Care Provider. Generalsurgerynews.com. Retrieved July 31, 2022, from https://www.generalsurgerynews.com/In-the-News/Article/10-2021/Anatomy-of-a-Lawsuit-Legal-Pearls-for-the-Wound-Care-Provider/64939