Liability Lessons for The Wound Care Clinic & Nursing Services

We live in a litigious society, but that’s not the best reason for wound care professionals to be adamant about properly safeguarding their practice habits.

The Code of Hammurabi, a Babylonian law code of ancient Mesopotamia dating back to 1754 B.C. that contains a collection of 282 laws and descriptions of punishments for those guilty of breaking those laws, did not leave surgeons room for margin of error. For instance, consider one such law and punishment: “If the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands.”

In today’s world, we treat chronic wounds of various diagnoses in an environment that is much more sophisticated, obviously. But as careful as we may be, we are all subject to being named in a lawsuit and perhaps being judged rather harshly. And while Hammurabi’s eye-for-an-eye mentality is not followed by anyone reading this, that doesn’t mean that there aren’t any of a malpractice suits against healthcare professionals that aren’t unsightly. I am not a lawyer, nor am I pretending to be an expert on legal matters. Still, with this article I plan to review some points for all wound care providers to consider to help decrease liability risk exposure when treating patients in their clinics. We will also review some information related to malpractice coverage garnered through an interview with a representative from a professional liability company for nurses.

ARE THERE LIABILITY SAFEGUARDS?

Instead of discussing what happens in the event of a subpoena, let’s look at what we all may be able to do to provide excellent care and how we can better recognize when we might fall short of that measuring stick. We know there are multiple resources and guidelines available to help us treat wounds, but are we consistently following them and/or updating them?  The overall priority when looking through this lens becomes improving patient safety while reducing the possibility of medical errors. An Institute of Medicine (IOM) report claims the majority of medical errors today are not produced by negligence, lack of education, or lack of training. Rather, errors occur in our healthcare system due to poor system designs and organizational factors, much as in any industry.¹ In an effort to promote patient safety, the National Safety Council defines a “near-miss” event as an unplanned occurrence that does not result in injury, illness, or damage, but had the potential to do so. Being able to monitor and keep record of these near misses may help us prevent future incidents and can capture data for comparison, trending, and improvement opportunities. What follows is my list of three key components for how wound clinics can provide optimal care and decrease the potential of accidents. (Keep in mind that by providing these basic components, we are also reducing risk of malpractice lawsuits at the same time.)

1.
Follow current best practices for care/clinical practice guidelines (CPGs); follow a standard of treatment based on national guidelines.

2.
Communication: provide accurate and timely communication between the healthcare team across the continuum of care and with patients and their families. Remember that people may sue to “find out what happened” or to get answers.

3.
Documentation: adequate documentation is needed to ensure proper ongoing treatment, and documentation is essential in the event of a lawsuit. “If it was not documented, it did not happen.”

Recommendations, algorithms, and best practice guidelines for the various types of wounds are available and are utilized as an effort to improve healthcare. In 1992, an IOM report defined guidelines as “systematically developed statements to assist practitioner and patient decisions about appropriate healthcare for specific clinical circumstances.”² One is able to find recommended guidelines from various entities. For example, the National Pressure Ulcer Advisory Panel, as well as multiple societies and various organizations, provides clinicians with guidelines for prevention and management of pressure injuries. Multiple societies, such as the Wound, Ostomy and Continence Nurses Society,^™ the Society for Vascular Surgery, the American Venous Forum, the Wound Healing Society, the Association for the Advancement of Wound Care, and others provide guidelines for the treatment of venous ulcers. A word of caution, however, is that these guidelines must be reevaluated routinely to ensure they are still applicable to current best practice standards. One study determined an estimated 50% of CPGs will be outdated after 5.8 years while 10% are obsolete after 3.5 years.³ However, these average estimates can be misleading, as CPG deteriorating speed is highly topic-specific, with some fields developing more rapidly and requiring more frequent surveillance for new evidence than others. 

COMMUNICATION & DOCUMENTATION

Effective communication is an important component of patient care and can help prevent a malpractice claim. You could be the most educated, talented, and experienced clinician, but if you can’t communicate with your patients there will be a lack of trust and a poor perception of the care received, which may increase the likelihood of a legal claim. Effective communication should also be carried across the continuum of care. It has been proven that being able to communicate effectively and directly affects the quality of patient care, safety, medical outcomes, and patient satisfaction.⁴ Good documentation not only assists healthcare providers in making appropriate decisions about the care being provided, it can also be helpful in supporting those facing a malpractice case. From a different perspective, documentation that tells the patient’s story will also help insurance companies approve specific interventions. 

Medical malpractice lawsuits appeared in the court systems as early as the mid-1800s, with approximately 70-90% of litigations involving fractures and dislocations with imperfect results.⁵ Prior to this, there were writings about medical responsibilities when caring for patients in the Code of Hammurabi. Medical malpractice is generally defined as any act or omission during the treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.⁶ Medical malpractice persists in the inpatient and outpatient settings, with the following examples of allegations or claims: wrong-site surgery, improper and delayed diagnosis, medication errors, and patient injuries, to name a few. 

INDUSTRY INTERVIEW

What follows is feedback gathered during a recent interview with David Griffiths, senior vice president of the Nurses Service Organization (NSO), Hatboro, PA, a provider of liability insurance coverage for nurses.

Q: In your opinion, what influences the opportunity of a wound care professional being named in a lawsuit? 

A: “In our most recent claims study, the specialties with the highest percentage of closed claims include adult medical/surgical, gerontology, and home health. The healthcare locations that experienced the greatest distribution of claims were hospital inpatient medical, aging services, and the patient’s home. Five allegation categories account for 96% of all the closed claims in our latest analysis. Treatment and care-related claims had the highest percentage of closed claims, which accounted for 45.9% of all the closed claims and had an average paid indemnity of $178,785 per claim (followed by claims with an allegation relating to assessment, monitoring, patients’ rights/professional conduct, and medication administration). 

Claims with allegations related to medication administration resulted in the highest average paid indemnity payments. Interestingly, malpractice claims arising from care delivered in patients’ homes are on the rise, increasing from 8.9% in 2010 to 12.6% in 2015. Meanwhile, claims involving inpatient medical settings declined from 20.2% to 17.7%. The Affordable Care Act has likely contributed to rising home healthcare malpractice claims because it is driving greater collaboration between primary care practices and home care providers. The increase in claim activity for nursing services provided in the home likely reflects an increase in volume of home care and does not suggest that the home is a less safe care environment.”

Q: What is the average cost for defending a medical malpractice claim, and what is the average settlement?

A: “The average cost for defense (eg, attorneys, expert witnesses) of a nursing professional against a medical malpractice lawsuit is $37,084, based upon our most recent claim report. And that’s if the nurse wins. The average cost for a settlement payment is $164,586, for a total of $201,670. The NSO professional liability insurance program offers coverage up to $1 million for each claim, up to $6 million per year, and pays for legal expenses.”

Q: What happens when your clients receive a notification that they are named in a lawsuit?

A: “It’s important to contact [your legal counsel] as soon as you are notified of a suit, even if it’s an incident you think may not result in a lawsuit. Also, only speak with [your legal counsel] about the case. Do not discuss the details of the case with colleagues or others. It’s important to note that while a nurse may not be named in a lawsuit, she or he may receive a subpoena for testimony arising out of professional services. [Liability]  coverage could pay for an attorney to prepare the nurse or provide representation at a deposition. In addition, a lawsuit triggers an administrative investigation by [the respective] state board. Our coverage reimburses you for attorney fees and other covered expenses incurred by you in connection with your investigation, and defense of a disciplinary hearing or proceeding arising out of a covered license protection incident. It also is designed to reimburse nurses for lost wages, travel, and other covered expenses incurred when required to attend a trial, hearing, or proceeding as a defendant.”

Q: What should clinicians consider when selecting malpractice insurance?

A: “Medical malpractice claims can be asserted against any healthcare provider, including nurses. Although there may be a perception that physicians are held responsible for the majority of lawsuits, the reality is that more healthcare professionals are finding themselves defending the care they provide to patients. In fact, more than $87.5 million were paid for malpractice claims involving nurses, according to [recent studies]. A good way for nurses to prevent exposure to legal liability is to understand — and reduce or avoid — the exposures that have led to liability allegations. According to our latest research of 549 closed claims, the average total incurred payment per claim was $201,670. The data also show that many of the claims are allegations for a failure involving core competencies, such as treatment and care management, assessment, and monitoring. The claims demonstrate that nurses are responsible for obtaining and documenting the overall need for medical intervention to meet the patient’s medical needs.”

Q: If my facility offers insurance, should I still get additional protection?

A: “Professional liability insurance safeguards against allegations of malpractice. While your employer may provide coverage, the best interests of the employer are the primary focus, and an employer’s coverage often only applies to malpractice charges that occur in the workplace. In addition, coverage, if there is a complaint against you and subsequent investigation by your state board, is not part of an employer’s policy. Clinicians should check their facility policy to ensure that they have coverage — both malpractice and license protection. If not, that’s what professional liability insurance is designed to address.”

Q: If a clinician is employed at various entities, will one plan cover him/her at each facility?

A: “Yes, our policies are designed to provide coverage for nurses anywhere they work, within the scope of their license. In the digital age with telemedicine, nurses need to be aware of their scope of practice not just for the state in which they reside, but any state in which they are practicing. It is not necessary for nurses to record worksites on their policy, and there is no additional premium. This way, nurses are safeguarded 24 hours per day at any location. Organizations such as the NSO and Healthcare Providers Service Organization have educational resources available for healthcare providers that cover a variety of topics, such as improving patient safety, court cases, and recognizing liability risks. n

Frank Aviles, Jr. is wound care service line director at Natchitoches (LA) Regional Medical Center; wound care and lymphedema instructor at the Academy of Lymphatic Studies, Sebastian, FL; physical therapist/wound care consultant at Louisiana Extended Care Hospital, Lafayette, LA; and physical therapist/wound care consultant at Cane River Therapy Services LLC, Natchitoches.

References

1.
Growing Concerns About Medical Errors. In: Doing What Counts for Patient Safety: Federal Actions to Reduce Medical Errors and Their Impact. Quality Interagency Coordination Task Force. 2000. Accessed online: https://archive.ahrq.gov/quic/report/mederr4.htm

2.
Field MJ, Lohr KN. Clinical practice guidelines: directions for a new program. Washington, DC: National Academies Press;1990.

3.
Shekelle P, Ortiz E, Rhodes S, et al. Validity of the agency for healthcare research and quality clinical practice guidelines: how quickly do guidelines become outdated? JAMA. 2001;286(12):1461-7.

4.
Stewart MA. Effective physician-patient communication and health outcomes: a review. CMAJ. 1995;152(9):1423-33. 

5.
DeVille KA. Medical Malpractice in Nineteenth-Century America: Origins and Legacy (The American Social Experience). New York, NY. NYU Press;1992.

6.
Bal BS. An introduction to medical malpractice in the united states. Clin Otrhop Relat Res. 2009;467(2):339-47.