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With wound care services becoming more prevalent in the home health care world, the risk of being liable for negligence has become greater for providers.
Due to the Patient-Driven Groupings Model (PDGM) and changing demographics — among other reasons — wound care has gotten more popular among home health care providers of late. And yet, it comes alongside cautionary tales that many providers may not be completely attuned to.
“Wound care is the second most common lawsuit after a wrongful death — so that litigation is not going away.” Amy Cassata, vice president of clinical success at Swift Medical, told Home Health Care News. “The average settlement for a pressure injury malpractice lawsuit is about $250,000. About 33% of all malpractice claims are from failure to diagnose, and 87% of those are in favor of the plaintiff.”
Overall, chronic wounds affect 5.7 million people in the U.S., according to data published by the U.S. National Library of Medicine in 2018. Broadly, seniors face a higher risk of developing chronic wounds because of the many changes associated with aging.
Plus, the demographics of the U.S. continue to shift. Specifically, 81 million people in the U.S. will be older than 65 years, compared with 72 million under the age of 18, by 2040.
These shifts will likely mean that the amount of people who need wound care will continue to grow. But despite the growing need for services, wound care hasn’t always been a popular service line for home health providers.
“Historically, [providers] didn’t necessarily want to take those wound care patients, because your agency was not appropriately reimbursed for the amount of effort and complex clinical skills that go into it,” Cassata said.
Swift Medical is a Toronto-based digital wound care management company.
The roll out of PDGM impacted wound care’s place in home health care. It made those services a more favorable reimbursement opportunity.
This change means more providers — even ones that may have shied away in the past — are leaning into wound care.
“We’re seeing that they can’t be as selective when admitting patients on their caseload because if they’re known for being super selective, they’re going to get less referrals,” Cassata said. “We’re also seeing a lot of the organizations that were already taking care of those complex [wound care] patients being compensated fairly now.”
As more providers take on wound care, it will be important to understand what constitutes negligent wound care, private-practice attorney Elizabeth E. Hogue told HHCN.
“Basically, what a patient has to prove is that there was a duty on the part of the provider, and of course that general duty is to meet applicable standards of wound care, and that this duty was breached,” she said.
It has to be proven that this failure — either the provider doing something they should not have or failing to do something they should have — caused injury or damage to the patient.
For example, a nurse failing to recognize a worsening or infected wound resulting in the patient losing their limb.
“This is not uncommon, especially with some of these diabetic wound care patients, so the stakes are potentially high,” Hogue said.
Some of the common types of wound care negligence include failing to properly monitor and observe patients, failing to report changes in patients’ conditions to physicians and failing to properly document wound care, according to Hogue.
In addition to negligence, providers are also at risk of liability for abandonment when wound care services are discontinued.
“Providers are really urged to move patients in and out of care as rapidly as possible,” Hogue said. “We can all appreciate the reasons for that, and I think we’d agree that’s the way it should be. But it’s easy sometimes, in the midst of that churn, to recognize that a patient’s got a problem and shouldn’t be discharged after all.”
While providers with malpractice insurance in place have some level of protection, it’s important to prepare for cases where the verdict may fall outside of the limits of the organization’s policy. Some providers may have to deal with higher premiums or their coverage may be canceled altogether.
Hogue also noted that providers delivering wound care are at risk for violation of fraud and abuse prohibitions, de-certification from participation in the Medicare and Medicaid programs, disciplinary action by state licensure boards and indictment for criminal neglect.
When it comes to risk management, there are two areas providers should focus on. One of these areas is wound measurement, Hogue said.
“You want all of the staff to be measuring them the same way so that you get a realistic picture of what is happening to the wound,” she said.
This means that it’s critical for providers to have set standards and training in regards to wound care, something they may have not had in place in the past.
The other area is making sure to capture images of the wound.
“Some of my wound care colleagues may disagree with me on this point because they think that when a picture is shown to those who have no clinical training during a lawsuit, it makes it worse,” Hogue said. “I disagree, because the case is likely to turn to expert testimony. An expert is going to put what is shown in the picture into perspective. Pictures are absolutely essential.”
Consistent and accurate wound care documentation is another important factor in lowering liability risks for providers, according to Cassata.
Bringing on wound specialists or consultants can also help a provider put their best foot forward in this area.
“Even more important than legal consultants — in this area — are wound care specialists,” Hogue said.
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