Pressure Ulcers: A Nursing Home Primer on the Law of Evidence
December 15, 2008
The number of lawsuits against nursing homes is rising. Many of these suits begin with either a sentinel, ‘never-event’ (e.g. dehydration, fecal impaction, etc.) or the emergence or worsening of a late stage pressure ulcer. In fact, trial lawyers are especially keen to bring negligence and malpractice actions over pressure ulcers because recent nursing literature has encouraged the use of wound photos to track the progression/regression of pressure ulcers as a part of the clinical record. Not incidentally, these photos are impactful and in many cases disturbing to judges and juries alike.
Let me be very clear. Emerging pressure ulcers can be a sign of negligent care. A nursing home should strive to never have an emerging pressure sore, and should work to heal the ones on patients at admission. This being said, pressure ulcers do happen. There are compelling arguments for tracking these wounds with photographic evidence, although these photos may make a legal defense more difficult.
Given the recent surge in lawsuits over pressure ulcers, then, I think a discussion on evidence law may be instructive for finding strategies to balance good nursing practice in taking care of these wounds and establishing aggressive practices for legal defense.
The rules of evidence dictate those facts which are admissible in open court and those which a jury will never hear. Evidentiary law is procedural – – it is lawyers’ law; it is the rules by which the game is played. As such, you can imagine, it is one of the most parsed, argued over and complicated areas of the law.
In order for the court to allow facts to be heard in open court (admitted as evidence), they must be relevant, material and competent. Relevance is whether the evidence makes a claim more or less probable. Material is whether the evidence is offered to help prove a fact at issue. Competence is the reliability of the evidence to prove what it aims to. For example, in a lawsuit involving a resident with a pressure ulcer, a photo of a wound is relevant if it shows the wound of the resident suing, not a wound like or similar to the resident’s wound. It is material if it shows the wound that caused the suit, not, for example, a previously healed wound acquired before nursing home admission. It is competent if the photo illustrates what it claims to (i.e. it is clear what is depicted in the photo or it has not been Photoshopped). The materiality, relevance and competency of evidence can be shown with something inherent to the evidence (something like labels on wound pictures) or by testimony of a witness with knowledge of the fact being depicted (example: the risk manager nurse who has the duty of keeping wound care photos).
Introducing Photos and Expert Witnesses
There are many specific and particular rules controlling the introduction of photos (especially specialty subject photos that are medical/clinical) into evidence, however. The first and most important of these is called the Best Evidence rule. Best Evidence is actually an ancient legal concept dating to the Ecclesiastical Courts of the Middle Ages, but remains extremely important today. Essentially, the demand is that if a document (or photo) is introduced into evidence to prove a fact (negligent care, say) it must be the original or, if a copy, you must have a good reason for not presenting the original. So, a wound photo, assuming it is developed into hard copy, should be the original print to be admissible.
This rule also dictates how photos taken on a digital camera, and stored electronically, can be admitted, albeit in an oblique manner. Since the law seeks originals in order to minimize the risk of misunderstanding caused by imperfect copies, a party seeking to admit a digital picture must be able to demonstrate the photo-file is the original one from the camera – – undoctored. Obviously, this is difficult to do, and may require testimony from someone familiar with the taking and storing of your facility’s digital photos.
The second related rule is that all real and demonstrative evidence (would photos will fit into either of these two categories) must be attested to with knowledge of the evidence. This can be anyone who knows where the evidence comes from and how it was produced. In the case of pressure ulcer photos, the court will also require an expert witness to describe to the jury what the photos are depicting, and what the depiction indicates (e.g. what stage pressure ulcer, how does one get to that stage, what are nursing practices to avoid this type of pressure ulcer, this particular resident’s circumstance which lead to this pressure ulcer etc.). With this type of testimony accompanying very expressive photos, it becomes obvious why wound photos are so important in these types of cases.
Admission into Evidence: A Facility’s Steps to Protect Itself
It is fairly clear that wound photos are going to be admissible into evidence in a lawsuit alleging negligent care by a nursing home leading to a pressure ulcer. So, what can facilities do to prepare for such suits? The obvious answer is to prevent pressure ulcers from emerging and carefully documenting those that are present on admission. From a legal standpoint the kneejerk answer (and one which many corporate counsel advocate) is to abandon the practice of taking wound photos, and rely instead on the written clinical record, but there are numerous nursing practice drawbacks to this approach. So, assuming a facility is going to take and keep wound photos for the clinical record, the best defense for any potential suit is to control the wound photos as much as is practicable.
Facilities should establish procedures whereby wound photos are as accurate is feasible and as precise as they can be. What this means is that every wound photo should be taken is similar lighting conditions, from the same distance (from camera to wound) with the same camera settings. Additionally, the photos should include some scaling metric (a ruler) and an indication of directionality. Many facilities I know of place a five centimeter L-ruler under the wound and easily removable orange sticker in the direction of the head. Steps like these make certain the wound does not appear worse than it really is (e.g. if there were no scale and the lighting was poor, a wound may appear more infected, larger and deeper than in reality). Also, facilities should ensure their risk managers or wound care nurses take adequate documentation on all wounds, and be prepared to explain what is depicted in photos. Last, make certain to take the appropriate number of photos so the progression/regression of a wound can be shown. Set a schedule for taking these photos – – same time each and every day, for example.
Ultimately, the law of evidence presents an occasion for lawyers to wrangle – – apply their skills and win the suit on procedural issues. But, despite the complexities of this area of the law, a general understanding can help Administrators prepare for a day that, hopefully, will never come; the day the care a facility provides is put into question.