Duty to Prevent Bed Sores and Duty to Treat Sores

Most cases involving bed sores, pressure ulcers or decubitus ulcers arise from a failure of the nursing home to either prevent the sores from forming or to treat them after they form.  The elderly have a lot of preexisting conditions that make them highly susceptible to ulcers.  This doesn’t mean the nursing home can sit back and do nothing, however.

The real test of negligent care is what they do when an ulcer appears.  Usually, if the nursing home gets on top of it early, follows the doctors orders for treatment, and follows its protocols, they can heal the ulcer before it develops into an advanced stage. (III or worse)  When I see or hear of cases where no one even knew the sore was present until it was a stage III or IV, its a red flag that someone wasn’t doing their job.Below is a case that involved issues of both prevention and treatment.  The case was successfully tried to a jury.

SUMMARY OF ARGUMENT

Plaintiffs’ mother was a resident at defendants’ nursing home, New Iberia Manor South.  She developed a coccyx decubitus ulcer in June of 2007 which progressed to a stage IV with osteomyelitis.  It led to her hospitalization in November of 2007 and her death on December 2, 2007.

The plaintiffs allege that the defendants breached the standard of care in failing to carry out the required measures to prevent and treat the ulcer.  Specifically, they failed to carry out the measures outlined in their own care plan for Mrs. T, the general principles of decubitus ulcer prevention and treatment as required under the federal Omnibus Budget Reconciliation Act.  The evidence to be discussed below, which includes the deposition of the defendant’s regional Director of Nursing wherein she admits to substandard care, shows the following:

• There was lack of proper turning which corresponds to the onset of the ulcer

• Required weekly skin assessments were not performed

• Fluid levels and/or dehydration was not monitored as required

• Braden scale evaluations were not performed as required

• Dietary assessment as required was not performed

• Weekly treatment updates as required were not performed

• A specialty mattress was never provided

Again, the defendants’ own medical records clearly demonstrate the aforementioned breaches.  The defendants’ own regional Director of Nursing, Barbara Ziesing, has given sworn testimony admitting that the aforementioned failures are a breach in the standard of care.  If this panel has any inclination towards fairness, it must find in favor of the plaintiffs.

BRIEF FACTUAL BACKGROUND

As was mentioned previously, Mrs. T was an 88-year-old resident at the defendants’ nursing home.  She had been a resident there since August of 2006 with a primary diagnosis of advanced dementia.  Other significant past medical history included diabetes mellitus, breast cancer with mastectomy, and depression.

The significant history for this panel begins on June 21, 2007 when the nurses’ notes indicate the discovery of a stage II coccyx decubitus ulcer.  That ulcer continued to grow in size and depth until Mrs. T was admitted to Iberia Medical Center on October 28, 2007.  She was admitted by Dr. Carl Ditch whose History & physical noted an impression of “1. Acute congestive heart failure probably induced by atrial fibrillation with rapid ventricular response, currently stable and improving.  2.  Possible early pneumonia, at least with bronchospasm and bronchitis.  3.  Necrotic sacral decubitus ulcer.”[1]

She was stabilized at the hospital and transferred to Iberia Extended Care Hospital on November 1, 2007.  Dr. Stuart Begnaud performed her History & Physical.  The panel will note that the decubitus ulcer had become forefront.  Her admitting diagnosis was, “1. Large stage IV infected necrotic sacral decubitus ulcer, now status post large debridement by Dr. Borland, including debridement of bone and partial coccyx resection.”[2]

Mrs. T passed away at Iberia Extended Care Hospital on December 2, 2007.  The death summary of Dr. Begnaud describes a hospital course wherein she succumbed to the infection caused by the stage IV sacral decubitus ulcer with osteomyelitis.[3]  Dr. Begnaud completed Mrs. T’s death certificate and listed the cause as “infected decubitus.”[4]

THE DEFENDANTS’ RECORDS SHOW SUBSTANDARD CARE

According to the MDS for Mrs. T, she was bedbound and completely dependent upon the nursing home staff for turning, repositioning or any mobility.[5]  That MDS also indicates that at the time of its completion, Mrs. Theriot was ulcer-free.

According to the defendants’ nurses’ notes, Mrs. T’s coccyx decubitus ulcer was first discovered on June 21, 2007.[6]  The discovery of this decubitus ulcer corresponds with a documented lack of turning for the months of April, May and June in Mrs. T’s ADLs.[7]  As was mentioned before, plaintiffs took the deposition of Barbara Ziesing, regional Director of Nursing for Nexion Health.  Nexion Health owns and operates New Iberia Manor South.  Ms. Ziesing oversees all Nexion facilities in Louisiana.  Beginning at page 11 of her deposition, Ms. Ziesing was asked about turning as follows:

“Q All right.  How does the facility document that turning is being carried out?

A It should be documented by the people that are actually doing the turning, which are the CNAs.

Q And what form do they use?

A It’s called an ADL record.”[8]

Ms. Ziesing further describes that ADLs are the only documentation the facility keeps on turning.[9]  Ms. Ziesing was asked to examine the ADL records for Mrs. T for the months of April, May and June, 2007.  Referring first to the April ADL, Ms. Ziesing was questioned as follows,

“Q All right.  As I look at this document, it appears that there’s some blanks that were not filled out.  And I assume that turning was not done at those times?

A We always say in nursing, if it’s not documented, it’s not done.  It is a very difficult task to get the CNAs to document.”[10]

Ms. Ziesing was asked similarly about the lack of turning documented on the ADLs for May and June, 2007 and responded similarly.  Naturally, she was protective of her employer’s interests.  For this reason she commented that just because turning was not documented, does not mean it was not performed.  But by her own admission, if something wasn’t documented it is assumed that it was not done.[11]

As to the standard of care, Ms. Ziesing had the following to say,

“Q Okay.  Would you agree with me that failing to turn the resident properly is a breach of the standard of care?

A If it’s been identified, yes, that it’s a risk factor, yes.”[12]

Ms. Ziesing did not have an opportunity to review Mrs. T’s care plan.  That care plan clearly notes that Mrs. T was at risk for skin breakdown and that she required turning every two hours.[13]

In sum, the defendants’ ADLs clearly document the lack of turning.  The defendants’ own regional Director of Nursing, head nurse for all of Louisiana facilities, admits that a lack of documentation creates a presumption that turning was not performed.  Further, she testified candidly that a failure to turn is a breach of the standard of care.

This panel must find the defendants breached the standard of care on this issue.

Referring back to Mrs. T’s care plan, it described the following approaches are required to address skin integrity and potential for skin breakdown.  Those are as follows:

• Weekly skin assessment per facility protocol
• Complete Braden scale quarterly as needed
• Monitor skin for S/S breakdown and redness during all direct care
• Dietician to evaluate resident nutritional status as needed
• One person to assist resident with turning and positioning while in bed q two hours and in W/C q one hour

• Place pressure-relieving product on bed/chair/other-6 inch foam mattress

• Panacea mattress

Ms. Ziesing testified clearly that the care plan for a resident and specifically, the approaches as mentioned above, are the standard of care for the resident.  These are the things the nursing home was required to do in order to meet their duty.[14]

We have already discussed the failure to carry out the approach of turning.  Looking at the remaining approaches indicates that the majority of these were not carried out as well.

Weekly Skin Assessments.  Weekly skin assessments were required for Mrs. T since her first day of admit in August of 2006.  Documentation of the assessments was maintained in the MARs.  A review of the MARs for Mrs. T from January, 2006 through October, 2007 demonstrates that save for the month of October, 2007, no other weekly skin assessments were made.[15]  Ms. Ziesing testified that weekly skin assessments were required as per the facility protocol.[16]  She testified that that documentation would be kept in the TARs.  The TARs for Mrs. T April, 2007 through October, 2007 make no mention of any weekly skin checks.[17]  As was mentioned above, the only mention of weekly skin assessments for Mrs. T can be found in her October, 2007 MAR.  This demonstrates that weekly skin checks were not performed until the last month before her discharge from the facility.

In sum, the defendants’ own regional Director of Nursing testified that the care plan and the approaches contained therein are the standard of care the facility is to meet for the resident.  Mrs. T’s care plan called for weekly skin checks.  These were not performed.  Further, Ms. Ziesing testified that weekly skin checks were required as per company protocol.  Plaintiffs have demonstrated yet another example of the defendants’ failure to meet the standard of care for Mrs. T.

This panel must find that the defendants breached the standard of care in failing to conduct required weekly skin checks.

Mrs. T’s care plan called for complete Braden scale quarterly as needed.  As this panel may be aware, the Braden scale is a form the nursing home completes to evaluate a resident’s risk for skin breakdown.  Mrs. T’s records reveal that a Braden scale was completed for her on July 5, 2007 and August 14, 2007.[18]  This record demonstrates that the nursing home did not begin completing the Braden scale as required until after Mrs. T had already developed her coccyx decubitus ulcer on June 12, 2006.  This is another breach of the standard of care.

Mrs. T’s care plan also called for regular dietician evaluations and the use of pressure-relieving products including a panacea mattress.  There is no documentation on either of these items.  Family members will testify at trial that no special mattress was ever provided to their mother.  Two more breaches.

Hand in hand with the prevention of decubitus ulcers is proper nutrition and hydration.  Plaintiffs have touched upon the lack of any documentation regarding a dietician evaluation.  This demonstrates a failure to address Mrs. T’s nutritional needs.  The records also demonstrate a failure to address her hydration needs.  Maintaining appropriate fluid volume was a goal specifically set out in Mrs. T’s care plan.[19]  The care plan regarding proper hydration called for several approaches including monthly weights, monitoring for signs of dehydration, and monitoring the resident for signs of infection.  The nurses’ notes for Mrs. T are significant on this issue for what is not contained in them.  These notes cover almost daily entries for Mrs. T from February, 2007 through her discharge in October of 2007.  In all of those entries, this panel should note that there is not one mention of a nurse checking Mrs. T for dehydration.  Ms. Ziesing testified and as this panel probably knows, dehydration is monitored by checking skin turgor.[20]  She testified that documentation of skin turgor checks would be contained in the nurses’ notes.[21]  Keeping in mind Ms. Ziesing’s rule that “if it wasn’t documented it wasn’t done”, it is impossible to believe that skin turgor (i.e., dehydration), was being checked on a regular basis if it is not mentioned one time in nine months of nurses’ notes.  This is a breach in the standard of care.  Similarly, there is no mention in any of Mrs. T’s records that her weight was ever checked as was required in the care plan.  Another breach.  Lastly, as to infection, it is clear that Mrs. T had a grossly infected decubitus ulcer when she left the defendants’ facility and was admitted to the hospital.  Although the ulcer was receiving some attention from the staff, it is clear that they had failed to properly monitor and address the severity of this infection.  A breach of the standard of care.

Up to this point we have addressed issues of the nursing home’s failure to prevent Mrs. T’s decubitus ulcer and demonstrated without question, that they breached the standard of care as to this duty of prevention.  The evidence also demonstrates, however, that after the ulcer was discovered, the nursing home breached their duty to properly treat that ulcer.  Obviously, the facility has a duty to carry out the doctor’s orders with reference to wound care.  Ms. Ziesing testified that New Iberia Manor South’s policy and procedure also required the wound care nurse to send weekly treatment updates to the doctor.[22]  A review of the weekly treatment updates for Mrs. T demonstrates clearly that the doctor was not being kept informed as required on the progress of the ulcer.[23]  (The facility only provided three updates from June to October).  The facility’s failure to keep the doctor updated was almost certainly a result of their failure to keep themselves updated on the progress of the ulcer.  New Iberia Manor South maintained a document titled “WEEKLY PRESSURE ULCER HEALING RECORD”.[24]  This document demonstrates that treatment was rendered July 17, ‘07, July 18, ’07, July 21, ’07, July 29, ’07, August 5, ’07 and August 15, ’07.  Thereafter, no further documentation exists.  A breach of the standard of care.

Provided to this panel will be a document entitled “Nursing Home Law on Standard of Care”.  That document contains various references to the federal regulations governing nursing homes.  Ms. Ziesing testified that these regulations, the federal OBRA regulations, establish the standard of care for the prevention and treatment of decubitus ulcers.[25]  Contained in these regulations is the duty to establish a comprehensive care plan, and to make sure the nursing home staff is familiar with that care plan and will carry it out.  This duty specifically encompasses the obligation to keep nurses’ aides competent in the skills and techniques necessary to meet the resident’s needs.  Specifically regarding decubitus ulcers, 42 CFR 483.25(c)(1) requires that the facility do the following,

• Assess
• Care plan
• Implement the care plan
• Evaluate resident outcome
• Revise the care plan as needed

That federal regulation specifically states that if the facility cannot demonstrate these things were done, then the pressure sore is to be considered avoidable.

No doubt the defendants and this panel will attempt to make excuses for the facility’s clear substandard care and one of the first it will arrive at is the fact that Mrs. T was a very sick lady, with end stage dementia, who was highly susceptible to decubitus ulcers.  Before this panel settles upon that excuse, it should be aware that federal law requires that the decubitus ulcer be considered avoidable unless the facility can demonstrate they carried out the standards of 42 CFR 483.25(c)(1).  The defendants’ own regional Director of Nursing testified that this federal OBRA regulation is the standard of care.  Plaintiffs have demonstrated overwhelmingly the defendants’ failure to meet the standard of care as described, not only in this federal regulation but by the defendants’ own policy and procedure and by their own regional Director of Nursing.

Mrs. T was a sick lady.  But as this panel can clearly understand, every person, no matter their illness or condition, deserves the best possible care while they are still alive.  Certainly, Mrs. T deserved better than to die from a grossly infected decubitus ulcer with osteomyelitis.

CONCLUSION

The plaintiffs have clearly demonstrated substandard care.  This substandard care caused a decubitus ulcer and caused that decubitus ulcer to worsen leading to Mrs. T’s death.

A word of caution to this panel.  The undersigned counsel has seen many times in the past where a panel simply refuses to rule for the plaintiff in the face of overwhelming facts such as these.  Usually, this is because of the mistaken belief that a decision for the plaintiff will somehow drive insurance rates up for themselves.  In fact, the opposite is true.  When a panel rules for the defendants or simply refuses to decide in a case with clear cut facts, the case does not end.  Many, many times in the past this counsel has taken an adverse panel decision, filed suit, and brought that case either to trial or more often, to the courthouse steps where it settles.  It settles because the defendants are aware of the adverse facts and understand that they cannot win at trial.  Unfortunately, because of the panel’s refusal to rule appropriately, the defendants end up spending an enormous amount of money on defense of the case.  This is an expense which could have been avoided had the panel rendered the proper decision in the beginning and the case settled early.  The irony is that it is this unnecessary expense which actually drives up insurance rates.  More than this, you have a moral duty to do the right thing.

RESPECTFULLY SUBMITTED,

GUILLIOT & ST. PÉ, LLC

________________________________

KENNETH ST. PÉ

La. Bar Roll No. 22638

428 Jefferson Street

P.O. Box 2877

Lafayette, Louisiana 70502

(337) 232-8177