Special Report: The Legal Aspects of Incontinence

    Almost all elderly nursing home residents (approximately 97%) need assistance in performing at least one activity of daily living (ADL) — activities that include the ability to bathe, dress, eat, transfer from bed to chair, and use the toilet. In addition, about 50% of residents have an incontinence problem that may require diapering, close supervision, or toilet training.¹

    Yet despite resident needs, on some occasions nursing home staff evaluators note that staff are not turning and repositioning residents for hours at a time, not cleansing residents after incontinence episodes, not using planned pressure relief devices, or not monitoring nutritional status. Monitoring implementation of the care plan should be a part of the facility’s quality assurance program.

    Medical malpractice lawsuits involving incontinence usually arise when patients suffer an injury that renders them incontinent — eg, if some form of medical malpractice led to spinal or brain injury that subsequently led to paralysis and difficulty with continence (either or both urinary and fecal incontinence). Other cases of medical malpractice involving negligence and incontinence may relate to pressure ulcers caused or worsened by incontinence that become infected and result in severe complications and death.

    The nursing home record should document that the resident was initially and periodically evaluated for risk factors that could contribute to pressure ulcer development. Assessment information may be recorded on a facility-specific form or on a standardized instrument such as the Braden or Norton Scale. The Norton Scale is a pressure ulcer rating system founded on five risk factors: physical condition, mental condition, activity, mobility, and incontinence.²

    Historically, litigation of elder abuse cases has been limited.³ Plaintiff’s lawyers have been reluctant to accept medical malpractice cases involving elderly claimants in which recovery for economic damages is minimal and general damages are reduced by the age of the patients and their overall medical condition.³ However, several factors have contributed to the rise in elder abuse/nursing home litigation: 1) increased activity of various state and federal oversight agencies that have produced regulations to protect the rights of elderly and dependent adult inpatients; 2) incentives for financial recovery by plaintiffs; and 3) public mistrust of nursing home care.³

    Scant case law relates to ulcers and incontinence. In one case, Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.) cert. den’d, 528 U.S. 906, 145 L. Ed. 2d 209, 120 S. Ct. 249 (1999), a doctor’s failure to 1) discover an inmate’s ulcer and 2) read nursing notes regarding an inmate’s incontinence problems or to ensure that orders were carried out might constitute negligence but not deliberate indifference. Specifically, the prisoner in Stewart suffered from a variety of ailments before his incarceration, including incontinence and mobility problems. He developed pressure ulcers that became infected and ultimately caused his death. One doctor who examined the inmate testified that he “had the worst bedsores she had ever seen.” Additional evidence showed that the prison doctor did not read the nurse’s notes and the nurses did not always follow the doctor’s orders. Nevertheless, the Court held that this conduct “is [not] sufficient to raise a material fact issue for deliberate indifference.” A case for negligence, however, was viable.

    The enactment of laws such as California’s Elder Abuse and Dependent Adult Civil Protection Act (CEADACPA) California Welfare and Institutions Code §15600 et seq.) that specifies the standard of care to which nursing homes are held has significantly changed the litigation climate in favor of plaintiff attorneys.³ The requirements under CEADACPA, as well as those from other state and federal guidelines, have provided California plaintiffs with a blueprint for establishing breaches of care and proving neglect and/or abuse. Federal regulations under the Omnibus Budget Reform Act (OBRA) also provide an extensive recitation of standards that Medicare/Medicaid funded institutions must meet in order to maintain funding eligibility.³ Although some skilled nursing facilities (SNFs) may fail to comply with these mandates either through indifference or neglect, the sheer volume of regulations virtually guarantees that even a fully funded, fully staffed, and well-intentioned facility could fall short of compliance in a number of areas.³

    Medical issues commonly cited in nursing home litigation are generally associated with a failure to meet the standard of care as defined by federal regulations and include³:
   • Dementia (Alzheimer’s dementia most common type, followed by vascular dementia)
   • Depression
   • Incontinence
   • Impaired physical function
   • Gait problems, paralysis from stroke, arthritis, contractures, or generalized weakness
   • Polypharmacy
   • Malnutrition and dehydration
   • Falls and fractures
   • Pressure ulcers
   • Physical and chemical restraints.

    The increase of litigation has a partial basis in the expansion of regulations pertaining to elder abuse law. The Office of the Inspector General (OIG) of the Department of Health and Human Services has identified seven types of elder abuse for nursing home residents.⁴

   1. Physical abuse. Infliction of physical pain or injury, including sexual abuse.
   2. Misuse of restraints. Chemical or physical control of a resident beyond the physician’s orders or care not in accordance with accepted medical practice — eg, staff failing to loosen restraints within adequate time frames or attempting to cope with a patient’s behavior through inappropriate drug use.
   3. Verbal/emotional abuse. Infliction of mental/emotional suffering — eg, demeaning statements, harassment, threats, humiliation, or intimidation of the patient.
  4. Physical neglect. Disregard for the necessities of daily living — eg, failure to provide necessary food, clothing, clean linens, or daily care of the patient’s necessities (bathing and grooming assistance).
  5.Medical neglect. Lack of care for existing medical problems — eg, ignoring a necessary special diet, not calling a physician when necessary, being unaware of the potential side effects of medication, or not taking action on a medical problem.
   6. Verbal/emotional neglect. Creating situations in which the resident’s needs for verbal and emotional contact are not met — eg, not considering the patient’s wishes, restricting contact with family, friends, or other residents.
  7. Personal property abuse. Illegal or improper use of a resident’s property by another for personal gain — eg, theft of a resident’s private television, false teeth, clothing or jewelry.
Incontinence that results in ulcers that result in complications and death falls in the area of “medical neglect” from which lawsuits arise.

    To conclude, incontinence results in both medical and medicolegal complications. Anyone who provides or supervises care of patients must be aware of these complications and implications.

1. Day T. About nursing homes. Available at: www.longtermcarelink.net/about_nursing_homes.html. Accessed September 15, 2005.

2. Juliano EB, Fell JR. MIM Reporter. Available at: www.medicineforthedefense.com/mim/MIMV3N3.pdf. Accessed September 15, 2005.

3. Institutional elder abuse. Available at: www.norcalmutual.com/information_center/claimsrx/ marapr_01.pdf. Accessed September 15, 2005.

4. McDaniel CL. Elder abuse in the institutional setting. Available at: www.neln.org/bibs/mcdaniel2.html. Accessed September 15, 2005.