Legal: Liability for Negligent Wound Care

Four common types of negligence related to wound care

To prove that providers rendered negligent wound care, patients must prove all of the following:

• Duty
• Breach
• Cause
• Injury or damage

If patients fail to prove one or more of the above, they will lose their lawsuits and the provider will win. It is important, therefore, for providers to understand these requirements so they can effectively work to defeat at least one of them to manage risks associated with wound care.

Providers

First, providers owe patients a duty of “reasonable care.” Reasonable care is rendered when practitioners provide the same care that everyone else provides under the same or similar circumstances. Practitioners can determine what others are doing by examining applicable national, as opposed to local or regional, standards of care.

Sources of national standards for wound care include:

• Requirements of third-party payors, such as Medicare Licensure and accreditation standards
• Standards of professional associations, such as WOCN

Providers can breach their duty to patients in two ways:

1. An act, i.e., doing something that providers should not do; or
2. An omission, i.e., failure to do something providers should have done. In most lawsuits, there is almost always more than one breach of duty by providers.

Example Of Breach of Duty

A physician, for example, ordered intravenous antibiotic therapy for a patient. The same nurse administered the medication on three separate occasions. A different nurse prepared to administer the fourth dose. She checked the label on the medication and discovered that it was the wrong medication. This nurse called the pharmacist and explained that he had sent the wrong medication. The pharmacy promptly delivered replacement medication. The nurse checked the label again and, unfortunately, discovered that it was still the wrong medication. She telephoned the pharmacist again who insisted that, even though the label was incorrect, the medication ordered by the patient’s physician was provided. The nurse hung up the telephone and administered the medication to the patient. It is certainly clear that there is more than one potential breach of duty in this case example.

The best way to define causation is in terms of “but for.” “But for” the act or omission of providers, patients would not have been injured.

Causation

Causation can also be defined in terms of “foreseeability.” If it was foreseeable that patients would be injured or damaged by breaches of duty by providers, then there is causation. If injury or damage was unforeseeable, there is no causation. In other words, there must be a causal connection between acts and/or omissions by the provider(s) and injury or damage to patients.

Time is an important element of causation. Several years ago, for example, The Washington Post reported that a man murdered four people. The newspaper reported in follow-up stories that the alleged murderer had been hospitalized at the Clifton Perkins Hospital, Maryland’s hospital for the criminally insane, about 10 years before the murders.

While hospitalized, the man was examined by a psychiatrist who reached the conclusion that there was “low potential” for future violence. The stance that the newspaper reporter took was that the subsequent death of the victims was the fault of this psychiatrist for misdiagnosing the patient. Providers know, however, that patients’ mental status may vary from moment to moment, so it is highly possible that something else happened to change the alleged murderer’s mental status during the intervening ten-year period.

In fact, the more time that passes between providers’ breaches of duty and injury or damage to patients, the less likely it is that providers are liable because it is more likely that there was an intervening cause.

Patients must usually show that they were physically injured by providers. Injuries that are only emotional will not usually satisfy this requirement. There is one exception to this general rule. Courts will pay patients, even if their injuries are emotional only, when providers engage in extreme and outrageous conduct.

Extreme and outrageous conduct is barbaric, shocking, cannot be tolerated in civilized society, and generally causes one to gasp, which is a very high standard to meet. Staff in a delivery room, for example, refused to perform an emergency Caesarean section on a woman who died precipitously during labor, despite the repeated anguished pleas of her husband who begged the staff to save the life of his unborn infant.

Four common types of negligence related to wound care include:

• Failure to follow physicians’ orders regarding wound care/refusal by practitioners to provide inappropriate care
• Failure to properly monitor and observe patients
• Failure to report changes in patients’ conditions to physicians
• Failure to properly document wound care

Providers beware! Home care nurses are now more likely to be sued than nurses in any other practice setting. Lawyers for patients and their families are now eagerly looking for cases involving negligent wound care.

Copyright © 2022 Elizabeth E. Hogue, Esq. All rights reserved. No portion of this material may be reproduced in any form without permission.