LEGAL ISSUES IN WOUND CARE

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1 LEGAL ISSUES IN WOUND CARE Contents Litigation Standards of Care for Wound Care Practice Negligence Malpractice Medical Records Documentation Plaintiff Complaint Defendant Fraud Tort Contract Lawsuit Expert Witness

2 Today, patients are better educated and more aware of healthcare issues than ever before. However, according to the Harvard Medical Practice Study, it is estimated that more than 98,000 deaths occur each year from medical mistakes. In fact, up to 3.7 percent of hospitalized patients are either injured or die from a medical mistake. The primary situations cited for malpractice include communication with the physician regarding the patient s change in condition and administering medication. Other problem areas include failure to: perform a nursing intervention or procedure correctly, assess the patient systematically, provide a safe environment, obtain help for a patient receiving inadequate physician care, use equipment and products properly, and prevent infection. The areas of practice most at risk for nursing negligence are: Emergency department Operating room Medical and surgical units Newborn nursery and pediatrics Labor and delivery The overall cost of medical errors must be understood. Consider the following costs, both direct and indirect: 1. The dollar amount that can be determined for the event or events that surround a medical error. 2. The lost opportunity that occurs when a patient must remain in the hospital longer as a result of an error and occupies a bed that could have been used for another patient. 3. The patient may experience a loss of income related to their condition as well as a physical disability. 4. The loss of trust in the hospital that the patient and family may experience. Clearly, the cost of medical errors far exceeds the direct costs experienced by the patient and the hospital. Therefore, it is in the best interest of all parties involved to avoid medical errors. 2

3 Litigation Civil litigation refers to a dispute citizens have with one another, whereas criminal litigation refers to the government or state prosecuting an individual for violating a law. Medical malpractice is in the civil litigation category. If an individual believes they have been wronged by a person or institution, they may consult with an attorney. Typically, an attorney will investigate to determine if the person has a legitimate case. Medical records and other information may be obtained. If they decide to go forward, a complaint is filed. The complaint is the legal paper that identifies the claims the plaintiff has made, as well as the basis of the jurisdiction of the court and the theories behind the claims. The complaint may also include the amount of damages. Once the complaint is filed, the defendant must answer within a given period of time. The defendant may also include claims against the plaintiff. The complaint and the answer combined constitute the formal lawsuit. Once the lawsuit is underway, additional activities such as discovery may occur. Discovery is the process by which both sides learn about each other, including the incidents leading up to the lawsuit, background information, depositions (pretrial testimony from a party), medical records, and expert testimony. In medical malpractice cases, the plaintiff must prove that there was a deviation from the standards for wound care practice. Standards of Care for Wound Care Practice Standards for wound care practice are derived from several agencies including the Agency for Healthcare Research and Quality (AHRQ), the American Nurses Association (ANA) Standards of Clinical Nursing Practice, the American Medical Directors Association (AMDA), the National Pressure Ulcer Advisory Panel (NPUAP), and Centers for Medicare & Medicaid Services (CMS) as well as individual state nurse practice acts. Replacing the American Hospital Association s (AHA's) Patients' Bill of Rights, The Patient Care Partnership informs patients about what they should expect during their hospital 3

4 stay with regard to their rights and responsibilities. The patient can expect high quality hospital care; a clean and safe environment; involvement in their care; protection of their privacy; discharge planning; and help with their bill and filing insurance claims. Negligence DID YOU KNOW Negligence is conduct which falls below the professional standard of due care. Negligence is considered a form of malpractice, or conduct which falls below the professional standard of due care. It is also considered a standard minimum of special knowledge and ability. Malpractice Medical malpractice may have occurred if all four of the following criteria are met: 1. A duty must be established with the patient. The clinician accepts accountability for the care and treatment of the patient because the patient relies on the clinician s knowledge, expertise and skill in treatment. 2. A breach of duty or standard of care must have occurred if there has been a breach of duty or an act of negligence that resulted in the patient s harm. 3. Injury causally related to a breach of duty must be established. In other words, the breach of duty is considered the proximate cause. Without the breach of duty, the injury would not have occurred. 4. Damages or injuries to the patient as a result of the negligence must be evident. Damage includes disability, prolonged or severe pain, and even death. 4

5 Medical Malpractice A Case of Negligence A patient is admitted to the hospital to have his gallbladder removed. The hospital has a written sponge count policy that the surgical nurses are obligated to follow. It is clearly the standard of care in the industry to have a sponge count policy, and to follow it in every procedure. During the gallbladder surgery, the nurses do not count the number of sponges inserted into the surgical wound. Instead, one nurse simply makes a note that three packages were used. The sponges always come in packs of five, so she is certain that 15 sponges are in the wound. However, one pack accidentally contained six sponges. The nurses count 15 sponges coming out, and the surgeon closes the wound based on that count. One sponge is left in the surgical wound. The patient develops an infection and several days later an x-ray reveals the presence of another sponge, which requires a second surgery. In this example, we have all of the elements of negligence. Clearly, the hospital and the surgical team owe the patient a duty of care implicit in the provider-patient relationship. The duty was breached when the nurses failed to conduct themselves according to the standard of care applicable to surgical sponge counts. There is a causal relationship between the negligence and the injury. If the nurses had counted the sponges according to policy, the sixteenth sponge would have been identified and removed. Finally, the patient suffered damages in the form of the infection and the second surgery. Medical Records The patient s medical record is important in a medical malpractice case. It is considered a legal document and identifies all patient care, including treatment decisions. It is the primary method of communication among members of the patient s healthcare team. 5

6 Documentation Documentation should always follow nationally recognized standards of care and be as complete and accurate as possible. When the documentation is incomplete or sloppy, it can be used to show a jury that the care provided was incomplete and sloppy. Do not use shortcuts or abbreviations other than those approved by your facility or within standard nursing practice. Many times, areas of negligence involve documentation in meeting standards of care. According to the Wound, Ostomy, & Continence Nurses (WOCN) Society standards of care: The patient should be holistically addressed, assessing the skin risk potential using a valid tool. Nutritional status should be addressed. The need for specialty devices like support surfaces should be determined. Referrals to another medical specialty practice such as a dietitian should also be included. If the written records contradict the oral testimony, juries tend to believe the written records. Plaintiff A plaintiff is the person(s) who initiate a lawsuit by filing a complaint with the clerk of the court against the defendant(s). Complaint A complaint is the first document filed with the court by a person (plaintiff) claiming legal rights against another (defendant). Complaints are usually written carefully (typically by an attorney) to properly state the facts and the legal basis for the claim. Also, a complaint must follow specific guidelines regarding format. For example, a complaint must be typed on a specific type of paper or on forms approved by the courts. When the complaint is filed, the court clerk will issue a summons that lists the name and file number of the lawsuit and the address of the attorney. A copy of the complaint and the summons must be served or given to the defendant before a response is required. The summons will instruct the defendant to respond. 6

7 Defendant The defendant is the person or party sued in a civil lawsuit or charged with a crime in a criminal case. In some types of cases, such as divorce, a defendant may be called a respondent. Fraud In criminal law, fraud is the crime of deliberately deceiving someone in order to damage them. It may be called "theft by deception," "larceny by trick," "larceny by fraud and deception," or something similar. Fraud can be committed through many methods including mail, wire, phone, and the Internet. Acts that may constitute criminal fraud include: Bait and switch False advertising Identity theft False billing Forgery of documents or signatures Taking money that is under your control, but not yours (embezzlement) Health fraud, including selling products of spurious use such as quack medicines False insurance claims Tort Tort is a legal term that means a civil wrong or fraud, as opposed to a criminal wrong. A tort is recognized by law as grounds for a lawsuit. A tort is a civil wrong for which the law provides a remedy for all citizens in that jurisdiction. Physical harm to someone else s body, property or legal rights are examples of torts. 7

8 Contract A contract is an exchange of promises or agreement between two or more parties that is legally binding. Contract law is based on the concept that promises must be kept. A breach or break of a contract is recognized by the law. Almost everyone makes contracts. Written contracts are often required, such as when buying a house. However, many contracts are made orally, like buying groceries or at the coffee shop. Lawsuit A lawsuit, also called litigation, is a dispute before the court system where the plaintiff seeks a correction. The defendant(s) will respond or answer to the plaintiff's complaint. If the controversy is not settled by an agreement between the plaintiff and the defendant, it will be heard and decided by a judge or jury. If the plaintiff is able to prove that they were wronged, a decision will be granted for the plaintiff. Court orders of various types may be issued to enforce the decision, such as a penalty or to award damages. Besides litigation, other methods of dispute resolution include arbitration, where a private arbitrator would determine the outcome; or mediation, which is a structured meeting where an independent third party works with the plaintiff and defendant to resolve the issues among themselves. Expert Witness An expert witness is a witness paid for and sponsored by a party to the litigation. Expert witnesses do not offer eye witness testimony about the events in question, but rather offer their opinions and conclusions about matters that are relevant to the lawsuit. Many times, the information is outside the understanding of the average juror. For instance, an expert witness might be retained by the plaintiff in a medical malpractice case to testify about the relevant standard of care that the jury should apply to the defendant s conduct. It is the expert s opinion as to why the defendant failed to satisfy the standard. 8

9 Experts have to be accepted by the court as qualified in the field that his or her opinion will be offered. For example, a Nobel Prize-winning chemist, although an expert in many areas, would not qualify as an expert on the standards of care applicable to wound care nurses. On the other hand, a retired wound care nurse with substantial experience and credentials in the field of wound care would certainly qualify. Experts are restrained by rules that permit them only to offer opinions that are consistent with accepted methodologies and theories in the relevant field. For instance, even if a wound care provider had profound credentials, experience and publications, she would not be allowed to testify to opinions that were outside of mainstream science just to earn a fee. References: Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events and negligence in hospitalized patients: results of the harvard medical practice study I. N Engl J Med. 1991;324: Cook R, Woods D, eds. Operating at the Sharp End: the Complexity of Human Error. Hillsdale, N.J: Lawrence Erlbaum Associates; Leape L, Brennan T, Laird N, et al. The nature of adverse events in hospitalized patients: results of the harvard medical practice study II. N Engl J Med. 1991;324:

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