By E. Kenneth Snyder

Health-care liability claims can arise in contexts apart from what lawyers usually think of as medical malpractice. Patients in nursing homes, skilled nursing facilities, long-term rehabilitation hospitals, etc., can suffer significant injuries for which they and their families may seek a lawyer’s assistance to obtain legal redress.

Bedrail strangulation incidents are drawing attention from risk managers, plaintiffs’ lawyers and the federal government.1 Hospital beds are medical devices, but for which the FDA has so far declined to require re-marketing approval.2 On August 30, 2004, the FDA published a notice in the Federal Register pointing to a need for action.3 An FDA document released that date sets out in graphic detail the gruesome outcome of strangulation by hospital-bed entrapment.4

The health-care and legal communities are on notice that hospital beds, bedrails, restraints, etc., are deceptively dangerous and that something needs to be done. At this time, responsibility lies at the level of bedside nursing to devise makeshift patient-specific strategies with vest and belt restraints, wedges, pillows, blanket rolls, etc., to try to obviate a serious hazard to patient safety until government and industry come up with a more definitive solution to the root problem.

Traditionally, it was a straightforward case of negligence if a patient fell out of bed because the nurses failed to raise the bedrails or if the doctor failed to write an order to that effect.5 The traditional view is undergoing radical change as bedrails are beginning to be seen by the courts as a form of physical restraint. A 2002 case from North Carolina has attracted considerable attention.6

Use of physical or chemical restraints for purposes of staff convenience or patient discipline is proscribed by federal regulations7 and by state nursing-home rights statutes and regulations which closely mimic the language of federal law.8 Public-interest nursing-home rights groups strongly advocate against the use of physical restraints, casting physical restraints as an affront to patients’ personal dignity.

Patient falls are a perennial safety and liability hazard. The bright-line liability determination is the adequacy of assessing the patient’s mental awareness of his or her physical limitations. A patient in full possession of his or her faculties, who has demonstrated awareness of his or her own limitations, who strikes out without assistance and against medical advice does so at the risk of being injured.9 Prior falls also figure into the determination.

Pressure sores and decubitus ulcers are yet another perennial liability issue in long-term care settings. A pressure sore or bed sore becomes a decubitus ulcer when allowed to progress and penetrate through the skin into the underlying tissue, perhaps all the way to the bone. Nursing home patients can suffer greatly and die from this condition.

The courts have accepted federal regulations as statements of the common-law legal standard of care in long-term care settings.10 A nursing home must ensure that a resident who enters the facility without a pressure sore does not develop a pressure sore unless the individual’s clinical condition demonstrates that it was unavoidable. Further, a resident with a pressure sore must receive necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.11 The healthcare facility has been held to have the burden of proof on the issue of unavoidability, at least in the administrative context.12

Even in an egregious case a nursing home can prove unavoidability by pointing to the patient’s underlying medical infirmity as well as the full gamut of treatment measures that were provided.13 The more usual scenario where liability attaches, however, is one where documentation of basic care is lacking and the patient seems to have been a victim of caregiver neglect.14 Liability can still be found where neglect is not to be suspected, but the patient did suffer harm and competent documentation of attentive nursing case such as repositioning of a patient with potential or actual skin breakdown on a two-hour basis was never entered in the chart.15

Neglect and abuse of nursing home patients still happens despite the best efforts of state and federal inspectors, ombudsmen, family members and public-interest advocacy groups. Worth mentioning is a line of cases now coming out of Louisiana holding that failure to change a patient’s adult diaper per doctor’s orders or more often as needed amounts to patient neglect.16 The important theoretical point for lawyers is that failure to change an adult diaper timely is not, according to the courts, medical or nursing malpractice. It is ordinary negligence.

No expert witness is needed to prove liability and consequent damages for deprivation of personal dignity. However, infrequent diaper changing means excess exposure of the skin to moisture, which can cause skin breakdown, bed sores and decubitus ulcers. This is a malpractice scenario and expert nursing testimony is required on the standard of care and expert medical testimony is needed on proximate cause and damages.17 n

1 See Bryant v. Oakpointe Villa, 684 N.W.2d 864 (Mich. 2004).

2 Federal Register, Vol. 63, No. 13, Pages 3142-3145 (January 21, 1998).

3 Federal Register, Vol. 69, No. 176, Page 52907 (August 30, 2004).

4 http://www.fda.gov/cdrh.beds (See illustration at Appendix D).

5 Pedraza v. Wyckoff Heights Med. Ctr., 744 N.Y.S.2d 644 (N.Y. Supp. 2002).

6 Estate of Hendrickson v. Genesis Health Ventures, Inc., 565 S.E.2d 254 (N.C. App. 2002).

7 42 CFR ¤ 483.13 (a).

8 See, e.g., WAC ¤ 388-97-075.

9 See, e.g., Curtis v. Doctors’ Hosp. of Opelousas, 862 So. 2d 1125 (La. App. 2003).

10 Koch v. Northport Health Services, ___ S.W.3d ___, 2005 WL 675752 (Ark. 2005).

11 42 CFR ¤ 483.25(c).

12 Emerald Oaks v. Agency for Health Care Admin., 774 So. 2d 737 (Fla. App. 2000).

13 Pack v. Crossroads, Inc., 53 S.W.3d 492 (Tex. App. 2001).

14 NME Properties Inc. v. Rudich, 840 So. 2d 309 (Fla. App. 2003).

15 Thomas v. Greenview Hosp., Inc., 127 S.W.3d 663 (Ky. App. 2004).

16 See, e.g., Henry v. West Monroe Guest House, Inc., 895 So. 2d 680 (La. App. 2005).