Evaluating the Merits of a Pressure Sore Matter
Pressure ulcers are among the most common injuries suffered by nursing home residents. They can be painful and debilitating and are horrifying to the resident’s family and to jurors alike. Elder care practitioners should have a basic understanding of the law protecting nursing home residents who develop bedsores so they can make a preliminary determination as to whether a bedsore case should be investigated further.
Nursing home residents are protected by a complex web of Federal and state regulations which govern almost every aspect of nursing home care. New York also protects nursing home residents with a private statutory right of action under Public Health Law Section 2801-d. PHL 2801-d is perhaps the single most powerful tool in the practitioner’s arsenal. It creates a private right of action for the nursing home resident who suffers any deprivation of a right or benefit conferred by statute, regulation, or the nursing home contract.
Against this statutory and regulatory backdrop, the pressure sore case must be evaluated. Pressure sores develop because of pressure and/or friction over an area of skin, resulting in decreased blood flow to that area. Affected areas are typically the sacrum, the coccyx, the feet, and heels. If the pressure is not relieved, the area develops into an open sore and death of tissue ensues. As the sore widens and deepens, layers of the skin can be eviscerated, exposing the bone below. Pressure sores are graded or staged according to their severity from stage I through stage IV. The federal and state regulations both provide that the resident has the right to be free of pressure sores which are medically preventable. That is, the nursing home must ensure that the resident does not develop pressure sores unless they are “clinically unavoidable.”
The issue of “clinical unavoidability” is central to the prosecution and defense of the pressure sore claim. Usually, the nursing home chart identifies the resident’s risk for developing pressure sores and includes a “plan of care” to address that risk (even if that plan of care is little more than boiler plate). In these cases, the battleground is often over the issue of whether the interventions and precautions ordered were actually implemented by the facility staff.
As a practical matter, pressure sore cases are very much like medical malpractice cases in terms of the number of medical records involved, the need for expert witness testimony, and the complexity of the litigation. Most attorneys who practice in this area will not accept a pressure sore case unless the pressure sore is at least a stage III or stage IV.
It is not unreasonable to expect that the medical and expert investigation of the potential pressure ulcer case could cost $5,000.00 to $10,000.00. If the case requires a trial, the litigation expenses can easily become 5 to 10 times that amount. Therefore, a critical threshold issue is whether the damages in the case warrant the significant expense of time and money necessary to prosecute the case to a successful conclusion.
Among the most damning and graphic pieces of evidence in the pressure ulcer case are the photographs of the sores. Clients should always be advised to take photographs of the ulcers. If the resident has died, funeral directors will often permit a photographer to document the sores while the body is being prepared or will offer to take the photographs themselves.
The infirm elderly are among the most vulnerable in our population. Unless clinically unavoidable, pressure sores should not occur in a skilled nursing facility. Litigation of bedsore cases is one method of promoting enforcement of existing standards of care and improving quality of care throughout the industry. Almost every stage III or stage IV bedsore case requires some investigation to determine if the bedsore was caused by negligence.
About Christopher Glass
Christopher Glass specializes in representing clients who have been injured as a result of medical malpractice, nursing home negligence, car accidents, construction accidents, defective or unsafe products, and trips/slips and falls. Since joining Rappaport, Glass, Levine and Zullo in 2013, Christopher has secured multiple six and seven figure settlements for his clients. Christopher has published articles and lectured in the field of personal injury and trial practice. He is currently a member of the New York State Trial Lawyers Association, Suffolk County Bar Association, New York State Bar Association, and American Association for Justice.
About Michael Glass Esq.
About Michael Glass Esq.Michael Glass has been litigating personal injury and medical malpractice cases for more than 30 years. He has been involved in many cases resulting in million and multimillion-dollar recoveries. Michael graduated magna cum laude from St. John’s University (which he attended on a sports scholarship), with a 3.989 average. He thereafter attended St. John’s University School of Law on a full academic scholarship. Michael graduated from St. John’s Law School third in his class. During that time, he served as an editor of the St. John’s Law Review, the school’s law journal, and received the New York State Trial Lawyers’ Louis Harold’s Award for Excellence in the field of Tort Law. Michael has been a partner with RGLZ since 1988, and concentrates in the prosecution of complex personal injury, medical malpractice, and nursing home abuse cases. He regularly lectures to other lawyers on a variety of personal injury topics for the various New York State Bar Associations. He has also published seminar pieces for the New York State Bar Association on several trial-related subjects. He was admitted to the bar in 1982, and is a member of the Suffolk County Bar Association, the New York State Trial Lawyers Association, the American Association for Justice, and the Nassau/Suffolk Trial Lawyers Association.
