As reported on McKnights.com, the Patient Safety and Abuse Prevention Act of 2009 (PSAP) was reintroduced to the Senate this week.  The proposed law would expand upon a seven state pilot program that provides funding for nursing homes to conduct Federal Criminal Background checks on all nursing home employees. 

Like many bills introduced in this first Congressional session of the Obama administration, this bill has been around the block a time or two.  In its previous incarnation, the PSAP included a funding provision to conduct federal criminal background checks on potential residents as well as employees, but it appears that provision was dropped to make this new bill more palatable.  This is probably a good “single-subject” modification, as background checks for employees and residents are truly different topics.  And, screening employees with a Federal Criminal background check is too important for the bill to be defeated based on a parallel, but unrelated, analysis. 

To illustrate the point, consider the following from an article in Modern Health Care:

 “Forty-one states require criminal background checks on most aides prior to employment, but only half of those    require criminal background checks at the federal level. In 2004, state agencies reported that they received more than 500,000 reports of elder and vulnerable adult abuse.”

This new version of the PSAP is really a funding bill, more than a mandate.  Essentially, it would open up money, in the form of grants, tying with said money an admonition to conduct checks on all current and future employees, to nursing homes meeting a certain set of criteria (essentially those receiving Medicare money). 

Personally, I am an advocate for this type of bill.  Sure, there is already a huge amount of processin the Long Term Care hiring process.  From CNA databases, state level criminal background checks and some Federal checks, hiring is a costly, and time consuming process.  But, two arguments win out on the other side: 1) Such checks really will keep elders in LTC safe, or at least safer, from criminals moving from one state to another to work in LTC; 2) from a legal liability standpoint, such checks create a prima facie argument that a facility was not negligent in hiring. 

Negligent hiring lawsuits have made hay in the past few years, and not only in health care.  One benefit from so much mandated process in when hiring someone for LTC, is that should the worst happen – – should an employee harm a resident, the facility can insulate itself from the inevitable lawsuit by pointing out that a) the state and federal government require a lot of work from employers before they can hire an employee and b) by doing all of that work, the facility has done everything reasonable within its power to prevent just the sort of harm that has happened.  The failure of this duty is what is at bottom of negligent hiring suits.

So, I welcome the reintroduction of the Patient Safety and Abuse Prevention Act.  Hopefully, this bill will move swiftly through Congress and the president’s desk.   The money from this bill will increase resident safety, and afford LTC providers another shield against the sword of negligence suits.

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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.

Initial Understanding

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.

Conclusion

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.