"Many suspected pressure ulcers later turn out not to be pressure ulcers, once a knowledgeable review of the nursing home records is completed." Ronald E. Bush & Dale R. Sisco Bavol Bush & Sisco, PA

When preparing the medical defense of a pressure ulcer case, Bush and Sisco recommend ruling out other potential types of sores, such as venous ulcers, arterial ulcers, diabetic ulcers, etc. In order to establish the alternative causation defense, a thorough review of medical records should seek to establish underlying disease processes potentially responsible for causing other types of skin sores. In the event that the sore is found to be a pressure ulcer, Bush and Sisco advise that the defense attorney always explore the "clinically unavoidable pressure sore" defense. Once again, a thorough review of the medical record will be necessary to establish the basis of this defense.

In contrast to the aforementioned alternative causation in these cases, true pressure ulcers represent tissue damage and/or death stemming from external application of intense pressure for a short time or low pressure for a long time. Pressure ulcers usually develop over bony prominences of the body in such areas as the sacrum, hips, ankles, heels, and toes. However, a pressure ulcer can manifest in other body locations, if conditions are conducive. A pressure ulcer may form over the cartilage of the ear and/or the dorsum of the head in a resident who lies excessively in one position on a sweat-soaked pillow. A pressure ulcer also can form over the bony aspect of the cheekbone where a feeding or nasogastric tube has been too tightly secured without periodic repositioning.

Pressure ulcer development is often associated with insufficient turning and poor body alignment while the resident is confined to bed. Likewise, long periods of sitting in one position while in a wheelchair can cause such skin breakdown. Malnutrition, dehydration, continual skin wetting from lying in stool or urine, and skin abrasion from being dragged across rough bedsheets heighten the occurrence of pressure ulcers. Proper nursing care is one of the fundamental interventions for the prevention and restoration of pressure ulcers. As could be expected, the incidence of pressure ulcers in a nursing home population is highly correlated with low staffing levels. In Ohio in 1998, one out of every five annual nursing home inspections resulted in a citation for bedsore incidence. This statistic was often noted to characterize circumstances of insufficient staffing in nursing homes struggling to maintain profitability.¹

Economics of Pressure Ulcers

The combination of large numbers of nursing home residents who develop pressure ulcers, coupled with the staggering costs for their treatment, demonstrate why pressure ulcer litigation is proving to be a fertile field for plaintiff attorneys. A few statistics will substantiate this statement. The Agency for Health Care Policy and Research (AHCPR) reports that the prevalence of pressure ulcers in nursing homes is as high as 23%.² Referencing the National Long-Term Study, Bergstrom and Braden (1992) note that 35% of residents in skilled care institutions are reported to have developed pressure ulcers.³

Accurate expenditures for treatment of pressure ulcers are difficult to compute; however, all studies estimate that these figures are high. At the upper end of the range, according to a National Decubitus Foundation equation, additional costs related to the extended hospital stay of the average pressure ulcer patient are $50,976. Nationally, this translates into an annual expenditure of health funds amounting to over $55B, and this is a conservative estimate according to the Foundation.⁴ The Merck Manual of Geriatrics places the additional cost per patient of pressure ulcer care between $2,000 and $10,000.⁵ A study by Xakellis and Frantz (1996) of 30 nursing home patients revealed that treatment costs, including those of hospitalization, were $2,731 greater per ulcer.⁶

Litigation Trends

While the actual incidence of pressure sores in nursing home residents appears to be decreasing, the number of lawsuits is increasing. Berlowitz, et al (2000) studied 30,510 residents in 107 nursing homes. Findings revealed that from 1991 to 1995 there was a 25+% rate decline for pressure ulcers, with the proportion of new pressure ulcers of the most severe category types declining from 30% to 22%. The authors concluded that these nursing homes evidenced a substantial improvement in pressure ulcer preventive care.⁷

Monetary compensation for nursing home pressure ulcer cases is growing. Citing a report in The Wall Street Journal, Begley (1999) notes that in the period from 1987 to 1994, the average award in a nursing home negligence case increased from $238,285 to $525,853. In addition, while personal injury litigation produces punitive damages in only 5% of cases, the figure is 20% for nursing home lawsuits.⁸ Reporting on a study of nursing home jury verdicts from 1996 to 1998, Rowe (1999) noted that in 28 out of 30 plaintiff verdicts/settlements in pressure ulcer lawsuits, compensation averaged $973,340.92.⁹ In a review of pressure ulcer cases cited in legal databases, Bennett, et al (2000) identified 173 cases from 1937 through 1997. Numbers of cases were noted to surge in the years surrounding the publication of the 1987 Omnibus Budget Reconciliation Act (OBRA) and again in 1992 when the Health Care Financing Administration published the OBRA-87 regulations. For all years, the judgement/settlement range was $2,200 to $65,000,000, with a median of $250,000.¹⁰ The looming specter of awards such as these clearly mandate that an informed, objective review of nursing home records be undertaken when preparing the pressure ulcer case.

Structuring Medical Information Management

For mass torts in which hundreds or thousands of plaintiffs may claim medical damages, strategic planning for medical information management may be founded on a tiered evaluation process. Initially, the medical claims of each plaintiff can be evaluated using the 1-2 page medical abstract, organized according to designated diagnostic criteria. Records of claimants whose symptoms/diagnoses match the specified parameters may subsequently undergo a more in-depth analysis as the medical summary or medical chronology is developed.

In contrast, strategic planning for medical information management in most nursing home litigation is founded on the individual action. Accordingly, the most cost-effective approach to medical information management in these cases would not utilize a tiered formula. Instead, analysis of the case would be accomplished directly through the development of the medical summary/chronology.

• Bush and Sisco indicate that the most cost effective and efficient manner in which to stay on top of the mountains of medical records often encountered in the pressure ulcer case is through the use of medical information management services. The prompt, professional review and analysis provided by such services allow for early establishment of the defense strategy. The databases of information created by medical information management services allow for cross-referencing of records and permit the building of the defense position.

  
  
  
  Elements of the Review

  Medical records for nursing homes are structured somewhat differently than those maintained by hospitals and clinics. Familiarity with these differences will expedite the medical information management aspects of record selection, acquisition, review, and analysis. The following sections will delineate those medical documents, which should be evaluated when preparing the nursing home pressure ulcer case:

  • • Records: Entry to the nursing home for many individuals begins with a hospital admission. In many cases, these patients sought hospitalization for some medical disorder which may have rendered them susceptible to pressure ulcer formation. For example, Versluysen (1985) investigated the formation of pressure ulcers in elderly populations hospitalized for treatment of hip fractures, a relatively common problem in the aged. In a population of 283 elderly patients admitted to the hospital for hip fracture or elective hip surgery, 90 developed pressure ulcers. Mortality was 27%.¹¹
      
      In a similar study of 100 subjects, Versluysen (1986) discovered that 66 patients ultimately developed pressure ulcers, with 83% of these forming by only the fifth day of hospitalization.¹² Although these are now older studies, the authors cite such reports because of their noteworthy statistics. While the technology, prevention, and treatment of pressure ulcers have certainly changed, the implications for nursing home liability are still very clear. Given the constraints imposed by managed care upon duration of hospitalization, it is reasonable to conclude that elderly patients who have undergone operative regimens may be transferred to the nursing home for rehabilitation with an incipient pressure ulcer whose full extent is yet to be appreciated.
      
      In hospital transfer situations, review of medical records from this period of confinement should identify the degree to which skin breakdown may have already been present prior to entry into the nursing home environment. Medical and nursing discharge summaries and any patient transfer reports are the primary documents to evaluate for this evidence. Note should be taken of the location(s), stage(s), treatment, etc. for these lesions at the time of patient transfer for comparison with subsequent admission documentation contained in the nursing home record.
      
      An important caveat to bear in mind when reviewing hospital discharge records in pressure ulcer litigation is that such documentation may or may not list this problem among the discharge diagnoses. In a review of hospital administrative databases Berlowitz, et al noted that in a sample of patients with pressure ulcers transferred to nursing homes, the discharge diagnosis only listed pressure ulcers in 30.8% of the cases. Almost 50% of Stage 4 pressure ulcers (the most severe) were not recorded.¹³ In case preparation where such medical evidence is lacking, it becomes critical that the medical legal reviewer establish the pre-existence of the pressure ulcer when analyzing admission assessment records of the nursing home.
      
      Assessment Scales: The nursing home record should contain documentation that the resident was initially and periodically evaluated for risk factors which could contribute to the development of pressure ulcers. (See the discussion on the Minimum Data Set [MDS] in Part II of this series.) Assessment information may be recorded on a facility-specific form, or on a standardized instrument such as the Norton or Braden Scale. The Norton Scale¹⁴ is a pressure sore rating system founded upon five risk factors—physical condition, mental condition, activity, mobility, and incontinence. Each variable is rated on a scale ranging from "1" (least functional) to "4" (most functional). The lower the composite score, the more the resident is at risk for development of pressure ulcers. Similarly, the Braden Scale ¹⁵is organized according to six risk factors for pressure ulcer formation—sensory perception, activity, mobility, moisture, friction, and nutrition. All of the predictive factors are rated from "1" (least favorable) to "4" (most favorable), with the exception of the friction variable, which is rated from "1" to "3." In the Braden scheme, the maximum number of points potentially achievable is 23. As with any numeric rating system, documentary evidence offered by these instruments should be analyzed in conjunction with other aspects of the medical record. At least one study has shown that in some instances, the Braden Scale and the Norton Scale can overpredict the risk (36% and 64%, respectively) for development of pressure ulcers.¹⁶
      
      Pressure Ulcer Staging System: The severity and development of a pressure ulcer is indicated by its numerical stage evaluation. Shea (1975) designed a taxonomy for classifying pressure ulcers based upon a 4-tier gradation.¹⁷ Since that time, this categorization has been modified by the National Pressure Ulcer Advisory Panel (NPUAP) and is now termed the NPUAP Pressure Ulcer Staging System. In 1998, this standard was further refined to better reflect assessment parameters required for patients with varying ranges of skin pigmentation.¹⁸ Within this system, pressure ulcers are characterized as:

      • • Stage I: An observable pressure-related alteration of intact skin whose indicators as compared to the adjacent or opposite area on the body may include changes in one or more of the following: skin temperature, tissue consistency, and/or sensation. The ulcer appears as a defined area of persistent redness in lightly pigmented skin, whereas in darker skin tones, the ulcer may appear with persistent red, blue, or purple hues.
          
          Stage II: Partial thickness skin loss involving epidermis, dermis, or both. The ulcer is superficial and presents clinically as an abrasion, blister, or shallow crater.
          
          Stage III: Full thickness skin loss involving damage to, or necrosis (death) of, subcutaneous tissue that may extend down to, but not through, underlying fascia (the sheet of fibrous material overlying muscles). The ulcer presents as a deep crater with or without undermining of adjacent tissue.
          
          Stage IV: Full thickness skin loss with extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures (tendons, joint capsule). Adjacent tissue undermining and sinus tracts (an abnormal cavity into the tissue) may also be associated with this stage.¹⁹

      The NPUAP advises against the use of reverse staging to evaluate healing of pressure ulcers. Instead the NPUAP recommends that a pressure ulcer staging system should only be utilized to document the maximum anatomic depth of the ulceration, after any dead tissue has been removed.²⁰ Elaboration on this cautionary advice is available from the NPUAP at www.npuap.org/positn2.htm. The reader’s attention is directed to this instruction for its implications in case management of the pressure ulcer claim. Because of the potential for misuse of a pressure ulcer staging system, medical and nursing geriatric care experts should be consulted to properly evaluate this aspect of the medical lawsuit.
      
      Pressure Ulcer Healing Record; Pressure Ulcer Healing Graph: Given their potential for infection, disability, and death, Stage IV cases present the gravest threat in nursing home pressure ulcer litigation. The NPUAP indicates that Stage IV ulcers will not progressively resolve through the development of replacement muscle, fat, and dermis. Rather, "healing" takes place through the incorporation of granulation tissue, which is inferior to the more vital tissue elements lost during the original formation of the pressure ulcer. According to the NPUAP, resolution of pressure ulcer damage should be evaluated using criteria such as size, depth, amount of necrotic tissue and drainage, degree of granulation, etc.²¹
      
      The NPUAP (1997) formulated the Pressure Ulcer Scale for Healing (PUSH) as a research-validated instrument which nursing staff can employ to assess progression of pressure ulcers. The actual incorporation of the PUSH Tool into a revised MDS is reportedly under consideration. Within the PUSH system, assessments of ulceration length and width, amount of exudate (drainage), and tissue type are each scored and noted on the Pressure Ulcer Healing Record. Summation of the individual scores produces a total PUSH Score, which can then be plotted on the Pressure Ulcer Healing Graph timeline. A negative slope on the graph reveals that the pressure ulcer is resolving; conversely, a positive slope indicates that the ulcer’s condition is deteriorating. Information on the PUSH Tool 3.0, Pressure Ulcer Healing Chart, and Pressure Ulcer Healing Graph, as well as instructions for their clinical application, can be accessed via the NPUAP web site at www.npuap.org/push3-0.htm and www.npuap.org/pushins.htm. The NPUAP advises that the PUSH system be applied at "‘regular intervals,’" while the Agency for Health Care Policy and Research (AHCPR) indicates pressure ulcer assessments be conducted "‘at least weekly’" and "‘if the condition of the patient or wound deteriorates.’"²²
      
      Although a given nursing home may not have yet implemented the PUSH evaluation system with its nursing staff, sufficient data may be available in the medical record that the medical legal reviewer can construct a graphic depiction of pressure ulcer progression as one component of the medical information management. Subsequently, these illustrations can be expanded into instructive case exhibits for trial use by the attorney.

  Summary

  There are a number of other aspects of the nursing home record which must be considered in medical information management in the pressure ulcer case. Information from the Minimum Data Set, Quarterly Assessment, nursing notes, nursing care plan, multidisciplinary team meetings and other documents can cast a critical light on the true nature of the pressure ulcer claim. In part II of this series, The M.I.M. Reporter will identify the facts a review of these records can uncover in the pressure ulcer lawsuit and how the attorney can incorporate such findings into a strategic plan for optimum case resolution.
  
  The authors wish to thank Ronald E. Bush, Esq. and Dale R. Sisco, Esq. of Bavol Bush & Sisco for their kind assistance in the preparation and review of this article.
  
  
  
  ¹ Solov D. Ohio considers ways to address staff shortages. The Plain Dealer. Special Report, June 2000.
  
  ² Agency for Health Care Policy and Research. Pressure Ulcer Treatment. 1994; AHCPR Publication No. 95-0652.
  
  ³ Bergstrom N, Braden B. A prospective study of pressure sore risk among institutionalized elderly. J Am Geriatr Soc. 1992;40(8):747.
  
  ⁴ National Decubitus Foundation. Cost savings through bedsore avoidance. Website www.decubitus.org/cost/cost.html.
  
  ⁵ The Merck Manual of Geriatrics. (Online version) Chapter 14.
  
  ⁶ Xakellis GC, Frantz R. The cost of healing pressure ulcers across multiple health care settings. Adv Wound Care. 1996;9(6):18-22.
  
  ⁷ Berlowitz DR, Bezerra HQ, Brandeis GH, Kader B, Anderson JJ. Are we improving the quality of nursing home care: the case of pressure ulcers. J Am Geriatr Soc. 2000;48(1):59-62.
  
  ⁸ Begley TD. Nursing home law and litigation. NJ Law J. April 12, 1999: 32.
  
  ⁹ Rowe TA. Nursing home personal injury ot (sic) just nuisance-value cases. Indiana Lawyer. November 10, 1999:22.
  
  ¹⁰ Bennett RG, O’Sullivan JO, DeVito EM, Remsburg R. The increasing medical malpractice risk related to pressure ulcers in the United States. J Am Geriatr Soc. 2000;48(1):73-81.
  
  ¹¹ Versluysen M. Pressure sores in elderly patients. The epidemiology related to hip operations. J Bone Joint Surg Br. 1985;67(1):10-3.
  
  ¹² Versluysen M. How elderly patients with femoral fracture develop pressure sores in hospital. BMJ (Clin Res Ed). 1986; 292(6531):1311-3.
  
  ¹³ Berlowitz DR, Brand HK, Perkins C. Geriatric syndromes as outcome measures of health care: can administrative data be used? J Am Geriatr Soc. 1999;47(6).
  
  ¹⁴ Norton D, McLaren R, Exton-Smith AN. An investigation of geriatric nursing problems in the hospital. London. National Corporation for the Care of Old People; 1962. (Reproduced on the Agency for Health Care Policy and Research website ).
  
  ¹⁵ Bergstrom N, Braden BJ, Laguzza A, Holman V. The Braden Scale for predicting pressure sore risk. Nurs Res. 1987;36(4):205-10.
  
  ¹⁶ Bergstrom N, Demuth PJ, Braden BJ. A clinical trial of the Braden Scale for predicting pressure sore risk. Nurs Clin N Am. 1987;22(2):417-28.
  
  ¹⁷ Shea JD. Pressure sores: classification and management. Clin Orthop. 1975;112:89-100.
  
  ¹⁸ National Pressure Ulcer Advisory Panel. Stage I assessment in darkly pigmented skin. 1998: Web site www.npuap.org/positn4.htm.
  
  ¹⁹ National Pressure Ulcer Advisory Panel. NPUAP statement on reverse staging of pressure ulcers. Web site www.npuap.org/positn2.htm.
  
  ²⁰ Ibid.
  
  ²¹ Ibid.
  
  ²² National Pressure Ulcer Advisory Panel. PUSH Tool. Web site www.npuap.org/pushins.htm.

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