The tragedy is that they are preventable!

What is a Pressure/Bed Sore?

Bedsores, decubitis ulcers, and pressure sores are all terms that refer the same condition - an injury to a person’s skin and the tissue underneath it.  If you sit or lie down in the same position for long periods of time, the pressure on a small area of your body can squeeze shut tiny blood vessels that normally supply tissue with oxygen and nutrients.  If the skin and tissue are “starved” for too long, the tissue begins to die and a pressure/bed sore starts to form.  You are probably already figuring out these are a very serious risk for nursing home residents who are confined to a bed.  In this setting you will most likely see the sores/ulcers develop around the buttocks, hips, and heels.  They must be taken very seriously.  If left unchecked, a pressure sore can lead to amputation and in the worst of cases even death.  Sores can become infected and, especially with nursing home residents whose health is already deteriorating,  result in the infection spreading into the whole body.

Types of Pressure/Bed Sores

Pressure ulcers have four stages.  The states start out small and easy to treat and progress to very serious, as I touched on above.

Stage I:   These will appear as a reddened area on the skin which does not quickly fade, like say when you push on your skin and the “blush” goes away in a second or two.  The skin is unbroken and could be warm and slightly swollen.

Stage II:  The skin begins to breakdown and blisters form.  But the damage is only limited to the dermis (skin) and is not that deep.  It can look like a scrape, blister, zit, or crater.

State III: Now the full thickngess of the skin breaks down with skin loss to both the outer and underlying layers of skin.  Damage extends all the way down to the connetive tissue to the body (the tissue that holds the skin to the body) but not yet to the muscle.  There may be dead tissue which will be black in color (because it is dead).  Now the nursing home must remove this dead tissue before healing can begin.

Stage IV:  By now the pressure ulcer has become so deep that there is damage to the mucle, bone, and possibly the tendons and joints.  The wound can be so bad that it begins “tunnelling” under the skin into the body.

What is a pressure ulcer?

A pressure ulcer (also known as bedsore or pressure sore) is a dark or red area, a break or a deep, crater-like wound in the skin caused by pressure. Pressure ulcers usually develop over bony parts of the body – the tailbone, hips, heels, elbows, shoulders.  They are usually categorized in stages(see pressure ulcer primer), with it being commonly accepted that all Stage III and IV pressure ulcers are preventable.

Factors that may increase the risk of getting pressure ulcers include:

• Sitting or lying too long in one place
• Sitting in wet clothing or a wet bed
• Not getting enough food and water
• Having many chronic conditions at one time
• Using multiple medications that cause drowsiness, confusion or loss of appetite
• Using physical restraints

Pressure ulcers can be dangerous and painful for a resident, in part because broken skin can allow infection into the body. If untreated, pressure ulcers can deepen and even expose the bone. Deeper ulcers may be hard to heal or may not heal at all. Sometimes, pressure ulcers can lead to death.

What is the best care for preventing pressure ulcers?

Some residents have pressure ulcers when they arrive at a nursing home. Other pressure ulcers may develop while there. Residents without pressure ulcers on arrival may develop them later on. Skin changes and pressure ulcers can occur quickly. Routine skin checks are a key to good care.

Resident’s skin needs to be checked:

• Within 24 hours of admission
• On a regular schedule
• At least weekly, and more often if they can’t get out of bed or reposition themselves
• Whenever their condition changes

Residents who are at risk should be closely watched by staff, especially those that:

• Can’t move, don’t move often or are restrained
• Can’t eat or drink on their own
• Are incontinent (not able to control their bladder or bowel)
• Have active acute medical or psychiatric conditions (e.g., pneumonia, delirium)
• Are dying or in the last stages of dementia

Helping to prevent pressure ulcers means making sure residents:

• Get enough food and fluids
• Go to the toilet as needed
• Have their skin gently cleansed
• Move as much as possible
• Are turned at least every two hours in bed; every hour while up in a chair.
• Are checked carefully and often for complications of their medications
• Are turned gently to prevent damage to frail older skin

What should you see staff doing to treat pressure ulcers?

Certified nursing assistants (CNAs) continue preventive care, and look for and report early signs of pressure ulcers.

Licensed nurses (RN, registered nurse, or LPN, licensed practical nurse) describe each pressure ulcer and how it’s being treated in the resident’s record. Pressure ulcers are checked daily. Nursing home staff use pressure reducing or relieving devices or techniques to protect the bony parts of the body. These can be as simple as using a pillow to lift heels off the bed or as specific as a special bed, mattress or chair cushion that has foam or gel added.
For residents with dementia, the pain and discomfort from pressure ulcers may lead them to resist care. They cannot say they are in pain the way other residents can. Staff need to be aware that these residents’ behavior may be communicating their pain.

How can residents and families help?

Pressure ulcers are hard to prevent and staff need your help.

• Go to the care plan meeting to be involved in planning your or your loved one’s care
• The less you or your family member can move without help, the more likely a pressure ulcer will develop. If appropriate, inspect the skin yourself when you are helping with care
• Know the moving or turning schedules and support staff in carrying them out
• Let staff know if you or your relative is wet, thirsty, hungry or in pain. If your family member has dementia, tell staff how he or she communicates discomfort. Always ask how you can help.
• Be familiar with the medications you or your family member are receiving, including major side effects that can affect alertness, appetite, weight, hydration, mental function, or cause dry or itching skin.

Whom should you go to ask questions about pressure ulcers?

Ask the CNA caring for you or your family member, the RN or LPN charge nurse on the unit or discuss with the doctor in charge of your or your family member’s care. If you still have questions, go to the director or assistant director of nursing, or speak with the facility’s medical director.

This fact sheet was published by a national campaign to improve the quality of nursing home care in the United States.

David’s Comments: While the number in and of itself is not staggering, the real story is that the industry is trying to make itself better from within.  Obviously it is better for everyone if change comes from within the nursing home industry rather than from lawsuits.  The tort system (i.e. personal injury lawsuits) were developed a long-time ago with the idea that such lawsuits would in part act to change a defendant’s behavior for the better of us all.  It is extremely unfortunate for society that the only thing businesses seem to respond to in order to affect change is taking money away from them.

Risks

There are also several factors (i.e. negligence) which are usually associated with how bed sores develop.  They are:

• Bowel & Urinary Incontinence - Everyone knows what happens when they stay in the bath or swimming pool too long.  Your skin gets really soft.  Skin softened by moisture, in this case urine or feces, can become susceptible to pressure or tearing.  And once the pressure ulcer develops into an open wound you know what can happen when you put dirt into them - infection.  The buttocks is one area that is especially susceptible to pressure ulcers and incontinence.  In fact, a 1999 report put 70% of all bed sores in this area.  Residents who cannot control their bladder or bowel will be sitting in filth at the same time the pressure of being bedridden is applied to their skin.  That is why experts and nursing home attorneys will tell you bad bed sores are evidence of poor, negligent care.  Nursing homes may be liable for not controlling reversible incontinence and/or for not using materials that will wick moisture away from the patient’s skin.
• Malnutrition - nutrition is important for maintaining healthy skin and tissue below the skin.  As you read about in the Primer, pressure starves the skin of nutrients.  Thus, you want to make sure the skin is getting all that it needs to stay intact.  Proper nutrition makes the skin vulnerable to trauma and also delays wound healing.
• Diabetes or Vascular Disease - This is going to be what the defense attorney will say caused the bed sore or made in unpreventable.  (I should know, I used to be one!).  They will argue skin breakdown was caused by disease and not pressure.  This is an extremely complicated medical issue and is one I will devote a whole separate article to at some point.

If you want to investigate nursing homes for your family or loved ones, you need to get on to the Nursing Home Compare website, which is maintained by the Centers for Medicare and Medicaid Services (CMS).  The CMS uses three main criteria for scoring nursing homes: health inspection results, staffing, and individual quality measures.  All of these factors come into play whenever there is a negligence case brought against a nursing home.  Georgia nursing home attorneys are always on the lookout for whether inadequate staffing was to blame in any negligence case.

David’s Comments: The nursing home started out by doing the right thing when they assessed the patient as a fall risk and made him wear an alarm - an acceptable method of preventing falls in a nursing home.  But that is about the extent of what they did right.  Speculating, the staff not responding to the alarm is either one of two things.  Either it was a “willful and wanton disregard” to respond to the alarm and therefore the nursing home can be sued for punitive damages in addition to negligence.  Or, there was simply not enough staff to timely respond, meaning the nursing home was negligent by under-staffing its facility at that time.  Any nursing home attorney will tell you there is almost always an under-staffing issue involved because a nursing home makes money just like any other business, by reducing its costs such as payroll.

You may also want to check out the comments section of the newspaper’s article.  There are several nursing home employees who have left comments saying they even think this is negligence.  Some are even savvy enough to raise the understaffing issue and how mechanical lifts should be secured away from patients.

The Georgia Court of Appeals has slowly been issuing rulings that limit the use of arbitration agreements in nursing homes.  Just last week, Georgia held an arbitration agreement contained in Life Care Center of Gwinnett’s admission paperwork was unenforceable.  A daughter filed a wrongful death case against the Gwinnett nursing home after her mother “suffered a blow to the head and died from the resulting brain damage.”  (The case does not state what caused the blow to the head, but such injuries are usually the result of falls or assaults).  The daughter signed her mother into the nursing home under a “Durable Power of Attorney for Health Care.”  The case turned on the scope of the power of attorney.  The document conveyed power to make any and all decisions regarding health care, including medical treatment or procedures.  The Georgia Court of Appeals scrutinized the Power of Attorney and concluded it only pertained to health care decisions and did not convey authority for “decisions related to the handling of potential contractual or negligence claims that might” happen.

David’s Comments: Arbitration agreements are appearing in a majority of nursing home admission paperwork in Georgia.  It is usually the first issue a nursing home attorney must analyze - how to fight through the agreement and get their clients into court and out of arbitration.  There are many techniques for doing this.  This case illustrates how important it is to have a well drafted Power of Attorney if you are assuming the care and decision making ability for your loved one.  You need to tell the attorney writing your Power of Attorney so specifically account for (i.e. exclude) the power to sign arbitration agreements or other decisions relating to your family member’s legal rights on negligence claims.  You should also take comfort in the fact there is a bill called the “Arbitration Fairness Act of 2009″ (H.R. 1020) introduced by Rep. Hank Johnson (D-Georgia) that will outlaw the use of arbitration agreements in nursing home contracts.  Finally, I have also posted a copy of the Georgia Court of Appeals decision to prohibit the use of the arbitration agreement at Life Care Center of Gwinnett if you want to read it for yourself.

David’s Comments: This article raises several issues worth discussing.  First and foremost, the nursing home did the right thing by immediately reporting the event.  Both Georgia and the Federal government require reporting of nursing home abuse.  I would hope a jury would punish any nursing home that waits to report such an event, especially if there is record tampering associated with the investigation.  The defense will argue the nursing home met its standard of care in hiring employees by doing a background check - assuming it was a proper and thorough check and was clean.  They will also argue the criminal act was unforeseeable.  In Georgia, the law is an employer is not liable for the unforeseen criminal acts of its employees.  Essentially the courts take the position that everyone is expected to not break the law and you can’t hold an employer responsible for this.  Now if the employee had a history of other impulsive acts or abuse, the employer can be held liable because they were on notice of the potential for this employee to assault someone and the nursing home should not have continued to employee him.

Let’s talk for a second about human behavior.  Any good trial lawyer will always explore the story of all the characters involved in the case so a jury can engage with the human drama associated with a case.  Physical abuse by a caregiver is more likely impulsive behavior rather than an unprovoked malicious assault.  A nursing assistant may grow frustrated by a resident’s resistance to care or verbal abuse, which can be common with residents suffering from dementia.  The biggest factor in an employee “snapping” is poorly managed personal or workplace stress or “burnout.”  In addition to the stress being personal, the nursing home can contribute to the employees stress by understaffing the facility, improperly training the staff, and failing to monitor the staff for burnout.  The plaintiff’s lawyer needs to anticipate a jury may empathize with the employee and what she/he had to go through if the resident was abusive towards the nursing aid and develop a case theme around it.

David’s Comments: You prove liability (i.e. proving fault) for a resident-on-resident sexual assault by establishing the admission and retention criteria for the assailant indicate he should not have been admitted or kept at the nursing home.  You then combine that with inadequate staffing which led to a failure to supervise the assailant, especially knowing the risks from the state report.  Said another way, the nursing home had prior notice of the assailant’s tendencies and failed to act to protect the other residents from him.  The nursing home’s duty to protect its residents is heightened by the fact many residents suffer from dementia and are incapable of reporting the assaults and much less protect themselves from a 21 year-old aggressor.  The question every juror is going to be thinking is why did the nursing home put a 21 year-old male among its elderly residents?  The attorney handling the case will need to explore the nursing home’s profit motive to see if they were thinking about profits over people.

The United States General Accounting Office (GAO) investigated sexual abuse in its 2002 report entitled “Nursing Homes - More Can Be Done to Protect Residents from Abuse.”    The GAO studied nursing homes in three states, including Georgia.  The concluded sexual abuse was “significant” but under-reported.

David Brauns

I started Brauns Law in February of 2008 after spending years working for several large insurance defense firms.  Insurance defense firms are law firms hired by insurance companies to defend their Insureds (i.e. the people they insure like nursing homes, nurses, doctors, etc.).  I was an attorney at one of the largest medical malpractice defense firms in Atlanta where I worked in their nursing home defense group and their birth trauma group.  I learned how defense firms with unlimited money and resources defend cases where millions of dollars are at stake.  While it may be cliche, I was there just to learn my enemy, knowing my conscience would not allow me to defend people who hurt others for a whole career.

Here are some more insights into who I am and my vision…

What is your opinion regarding clients educating themselves on legal issues?
I am a firm believer in teaching and informing my client about all aspects of their case. One look at all the information on this website will confirm this devotion. An involved, knowledgeable client only makes for a better case and a better attorney-client relationship. My clients will only talk to me, not paralegals or secretaries.

Are you willing to coach clients who want to represent themselves?
I certainly respect a potential client’s wishes to represent themselves. In small personal injury cases such as car accidents  most people can handle it themselves.  But nursing home cases are different.  There is absolutely no way you can handle it yourself.  There are always defenses to be made and they all revolve around medical causation, something only experts can counter.

Why did you decide to be a lawyer?
I originally went to law school to become a trial lawyer. I was attracted to the strategy and adversarial nature of our legal system. I devoted my law school experience to learning everything I could about trying cases. After working for insurance companies, my reasons for wanting to be a trial lawyer changed dramatically. The 70-hour work weeks of defending individuals and companies who hurt other people left me broken-hearted and devoid of justice. I simply could not look at my career as only a job in which I had to argue and advocate for the side paying me. It had to be about more. Now I am able to have a professional career that gives me purpose. I leave the office each day knowing I am helping my clients find justice against companies and insurance companies who only care about money, not right or wrong.

What work experience and education helps you be a better lawyer?
Many lawyers go straight from college to law school and then learn from other lawyers who have taken the same route, thereby repeating some of the mistakes of their predecessors. Before becoming an attorney, I worked in several Fortune 500 companies and start-up software companies.  This instilled a whole set of organizational and communication skills I think some lawyers lack by the very nature of their career paths. Task management is critically important to being a great trial attorney, but is hardly discussed. Flawlessly executing litigation sends a strong message that you are prepared and will always result in increasing the value of your case.  At some level part of being an attorney is about customer service and that requires organization and communication skills.

Why did you decide on your primary area of practice?
I do what I do because I like helping people. It is not about the money. If I help people and do good work, the money will follow. Also, I have a strong sense of justice and have made it my mission to hold nursing homes and insurance companies accountable. I started my career as an insurance defense attorney – defending those sued in personal injury lawsuits. I told myself I would do it for four to five years and then flip sides to help the injured. I didn’t make it that long.

One night I was watching a documentary with my wife about the meat packing industry. There was a scene in the movie where a worker was cleaning out a huge, two-story meat grinder using a hose. The surface was wet and he slipped and fell off the machine. The movie cut to the hospital where the man’s wife was in the ER waiting room and in tears. All she wanted to know was whether her husband would be okay. Two people in suits walked over to her. One introduces herself as the Risk Manager of the company where the lady’s husband was hurt while the other gentleman was a lawyer. They started the conversation apologizing. Then the attorney said that while they are sorry for his accident, they know the woman’s husband had a back injury in the past so they were not going to pay him for the unsafe work environment. My wife gasped. I turned to her and said “I am that guy. That is what the insurance companies make me do.” I knew from that point on what my true calling was.

What do you like best about your career?
The answer is that I simply enjoy helping people and holding insurance companies accountable for their actions.  Most corporations and corporate owned nursing homes do not have a conscience.  They are driven by putting profits before people.  In today’s times it seems corporations have all the power and control in our society.  Trial lawyers exist to hold them accountable and make sure they are brought to justice.  Say what you want about lawyers and “tort reform” but lawsuits have changed behavior, whether it is Ford making better cars, making swimming pools safer, getting harmful pharmaceutical drugs off the shelves, or getting nursing homes to staff their facilities correctly to name a few.

What are your strengths and style?
I am highly organized and an effective communicator. I am driven by the belief I cannot lose if I am prepared. Lack of preparation is a lack of self-respect and reveals an attorney who does not care for his/her client. It is inevitable in the practice of law that you will be confronted with people who are smarter than you. Preparation is the key to prevailing.

Personal Interests:
I enjoy spending time outside with my wife and daughter. I am an avid non-fiction reader and enjoy learning a little about a lot of things. I also enjoy going to the gym, gardening, and mountain biking.