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When a family finds a loved one with a severe bedsore in a nursing home, they often sue. But these cases are rarely decided by the wound itself. They are decided by what the medical record shows. Tracy Liberatore is an attorney and former physician assistant who does expert witness work on these claims, and she explains why a four-step test, not the size of the ulcer, determines whether it is ruled avoidable or unavoidable, and why age and other health problems do not by themselves let a facility off the hook. This episode is based on her article “Unavoidable pressure ulcer claims live and die by the record,” published on KevinMD. You will hear how short staffing leads to missed documentation, how a 2023 Supreme Court decision opened a new path for lawsuits against publicly owned nursing homes, and what to record to protect patients and yourself. Press play to hear why the chart, not the wound, decides these cases, and what every nursing home clinician should be documenting.

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Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast. Today, we welcome back Tracy Liberatore. She is an attorney and former physician assistant. Today’s KevinMD article is “Unavoidable pressure ulcer claims live and die by the record.” Tracy, welcome back to the show.

Tracy Liberatore: Thank you. Great to be back.

Kevin Pho: All right, so for those who did not get a chance to read your article, tell us why you decided to write it, and then about the article itself for those who did not get a chance to read it.

Tracy Liberatore: Yeah, so it is interesting. I actually had an attorney request one of our experts and ask if we did these FNHRA regulations, and when it came through, the expert was not really sure what that was. So I ended up going down a rabbit hole trying to research it myself so that I could help the expert understand it, and also my other experts.

So I decided to write the article because it was not something we were very familiar with. We normally use F-tags. So basically the article is about that and about the documentation. With pressure ulcers, there are different tests that the experts have to look at when they are going in, and there is the plaintiff versus the defense, and the defense always wants to claim they are unavoidable, and of course the plaintiff wants to say certain things were not done.

It often sounds like it is an argument over these ulcers, but it is really an argument over documentation and what rules are in place that were violated or not violated. So I think that is the long and short of it.

Kevin Pho: All right. So I know you do a lot of expert witness work. What are some of the more common scenarios where pressure ulcer scenarios find themselves into the courtroom?

Tracy Liberatore: Yeah. So what we see a lot, on the plaintiff side typically, is issues with either nutrition or turning and repositioning. And of course, as I said, the defense wants to say these things were unavoidable. So the four-point test, the four tests for prevention and unavoidable ulcers, is whether the resident’s clinical condition and pressure ulcer risk was evaluated, and what interventions were put in place and implemented consistent with the resident’s needs.

They need to look at whether the interventions are monitored and evaluated for their impact, and then whether these approaches are revised as appropriate for the resident. So those are really the four-point test. And then there are these different layers now, as I said, with the FNHRA. There are the F-tags, which are the federal rules, and then the FNHRA comes in for a publicly owned company only.

So those are the different things that I have discovered our nurses need to really look at, and to ask the attorney up front whether this is a public or a private owned facility. I think I said that backwards, actually. The FNHRA is for publicly owned nursing homes, sorry. Not privately owned.

Kevin Pho: So in terms of the plaintiff’s reasons for bringing a case like this in a courtroom, what are the most common reasons why they would allege any malpractice? What are some reasons that bring it up to the plaintiff’s attention and bring it into a legal situation?

Tracy Liberatore: Yeah, so usually it is a family member who is going to bring these claims, because mom or dad was in a nursing home and they felt they were not being cared for.

And so family members see these ulcers growing, and sometimes they can look very, very hideous. They just take over. Some people get referred out to the hospital, and they can be septic. It can go into the bone. And then ultimately they can die from these things.

So when a family member sees their loved one developing these ulcers, obviously they are going to assume that they were not being cared for or toileted. Are they on a schedule for that? Are they being turned and repositioned? And so, again, family members do not understand the different factors that come into play as far as nutrition, lab work, and the different things that nursing has to look for.

But if they come in and visit a family member and they find their family member sitting in urine and feces and then they grow an ulcer, you better believe they are going to feel that something was not being done right at the home.

Kevin Pho: So take us into the courtroom, and you did mention this, the four-step F-tag test, and what that test does is define whether a pressure ulcer is clinically unavoidable versus avoidable. So let’s unpack that a little bit. Tell us what those four steps are in a little bit more detail, and how is that typically argued in the courtroom?

Tracy Liberatore: So for unavoidable, the resident’s clinical condition and pressure ulcer risk is something that the home has to evaluate when the resident is admitted, typically within a certain timeframe.

And again, these are part and parcel of the rules that the experts need to be aware of, the policies and procedures within the facility. So they need to really be assessed. They need to do a skin assessment. They may be admitted with a pressure ulcer. If you do not look at the skin when the person comes in and document it, you would not really know.

And risk factors would be, are they diabetic? Do they have vascular disease? And different things that could play into those factors. And then interventions, as I said, like the diet, the nutrition, the turning and repositioning. Are they monitoring labs? Are they bathing the patient? Are they making sure they are on a toilet schedule so that they can get them up and out and clean them, and the different things like that.

And then monitoring these different interventions when you put them in place to make sure that they are working. Is the ulcer healing? Is it not healing? And then revising as necessary. And sometimes wound care really needs to be consulted to come in and look at these wounds and debride them and treat them and take care of them, and they may need to go out and have them surgically debrided. There are a lot of different factors that go into that.

And really, a lot of the wound care documentation we see, they are documenting sloughing and tunneling and so many different things that go into staging the ulcer itself. But really you want to see the ulcer coming down in stage and not going up. There is a lot that goes into looking at these ulcers.

Kevin Pho: And in terms of applying those four steps, are there gray areas which lead into contention in the courtroom, or are they pretty much black and white?

Tracy Liberatore: There are always gray areas. I mean, again, that is why we have these things that end up going to court, right? Because as I said, the defense is going to argue, “Well, it was unavoidable because of X, Y, and Z, because this patient had comorbidities.”

And so really it boils down to the documentation to show whether or not the staff was doing what they were supposed to be doing. And unfortunately, a lot of times we do not see the documentation, and so if it is not documented, was it done? Was it not done? Those are the arguments that come up.

Kevin Pho: And when it comes to documentation, just tell us what is appropriate documentation to document these four steps, and why are they commonly missed?

Tracy Liberatore: Yeah. So I would say they are commonly missed probably either, number one, because they are not done due to low staffing, or they are not documented because of the same problem, short staffing.

And it is hard to do patient care plus documentation. So they need to document what interventions are in place, and then the nursing has to document every time something is done. So you look at a turning and repositioning schedule. If it is usually every two hours, the nurse has to go turn a patient and write down that they did it. They usually have to initial in the graph that is in the chart.

Kevin Pho: Now, things like age, comorbidities, and frailty, they are not automatic justifications for unavoidable pressure ulcers, right?

Tracy Liberatore: Right.

Kevin Pho: Yeah. So they simply have to go with those four steps. I just want to make sure I have that correct.

Tracy Liberatore: Yeah. No, absolutely, because those are the things that they will try to argue as to the reasons and contributing factors, but that does not excuse not treating the patient with these four different factors.

So it becomes unavoidable if you have done all four of these things and the ulcer still grows because of comorbidities, but if you do not do any of these things, of course these ulcers are going to grow, comorbidities or not.

Kevin Pho: Now, just tell us some of the outcomes of these trials. Like you said in that first scenario you mentioned, a family member brings a perceived lack of care to a plaintiff attorney, and they bring the nursing home into court, and then you have this legal battle over pressure ulcers, whether they are unavoidable or not.

What are some of the outcomes of some of these trials, and what are some of the repercussions that these nursing homes can face if they do not document this correctly and end up losing these cases?

Tracy Liberatore: Yeah, so we see most of the cases in these issues will settle out of court. So I do not necessarily know what the settlement numbers are, because those are behind closed doors, but some of the bigger cases that we have been on have had issues where they can then go to a second trial.

After the first trial is settled on the negligence, they could go to a second trial on punitive damages. And in those instances, what they are really trying to show is global negligence of this entire facility, that they just really failed this patient. And right now we are part of a litigation where there were multiple patients involved in this one facility, and they are showing each individual person and what happened to them, laying it out so that it can really show the global negligence of this facility as a whole.

Kevin Pho: In your article, you talk about a 2023 Supreme Court decision that affected this particular issue. So for those who did not get a chance to read it, or are certainly not familiar with this particular court case, just tell us a little bit about that.

Tracy Liberatore: Yeah, so that is the Talevski case that I was talking about, and this is where the FNHRA provision sort of came in. And this, again, is for the publicly owned nursing home facilities. I actually just did an update to my course based on this whole ruling, so I went a little bit into depth.

But again, it is the publicly owned. It came through on an issue with finances, and then it ended up coming through as this rule. So again, it is something that is available in certain instances. Most likely your attorney will tell you if it is an instance, but as an expert it would be something to just really be aware of, because if the attorney is not aware of it and you bring that to them, you are going to look like a hero for them.

So it held basically that the FNHRA rights are enforceable under Section 1983 at publicly owned facilities, that the chain is no longer just an administrative compliance reference, and that it is enforceable federal civil rights with its own litigation pathway is what makes that a big deal.

Kevin Pho: All right. Now, what are some messages for the clinicians if they are rounding on nursing home patients, and specifically about pressure ulcers? What are some lessons that they need to take home from this?

Tracy Liberatore: Yeah. I mean, really, the biggest thing is if you are doing something for the patient, make sure you are documenting it, because again, in the legal world, we look at it and we say, “If it is not documented, it was not done,” and there is really no way to come back and prove that it was if it is not in your notes and it is not in the chart.

Kevin Pho: We’re talking to Tracy Liberatore. She is an attorney and former physician assistant. Today’s KevinMD article is “Unavoidable pressure ulcer claims live and die by the record.” Tracy, as always, let’s end with some take-home messages that you want to leave with the KevinMD audience.

Tracy Liberatore: Yeah. Again, it is just documentation, documentation, and for me, if you are an expert, really just making sure that you know the status of the home and what rules are involved for your case. Make sure you are laying that all out for your attorney and applying your analysis to those rules.

Kevin Pho: Tracy, thank you again for sharing your perspective and insight. Thanks again for coming back on the show.

Tracy Liberatore: Thank you.