There is no such thing as an unavoidable pressure ulcer, although now the Federal Government seems to be saying otherwise.
Or, are they really? We shall now examine this more closely. The term “unavoidable pressure ulcer” itself is an oxymoron because to say that a pressure ulcer was unavoidable is to say that prolonged continuous pressure is unavoidable, which the standards of care require that it be avoided. In other words, how can we say that something is unavoidable if we are obligated to avoid it?
Yet the nursing facility that claims that a stage 4 necrotic pressure ulcer developed despite providing all of the required care (which included relieving pressure) has to show that it employed the specialty bed and turned the patient every two hours as well as attending to all other needs says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.
Thus in actuality, any ulceration that continues to deteriorate despite that the pressure was relieved at the prescribed intervals has some underlying etiology other than pressure that makes it unavoidable. Then by definition it cannot be categorized as a pressure ulcer and the focus needs to be redirected to the underlying condition and whether or not it was properly diagnosed and treated.
Pressure Causes Bed Sores
So, when it comes to bedsores, AKA pressure ulcers, and decubitus ulcers, it is always a matter of what was missing; assessment of risk, nursing care plan and implementation; all centered on alleviating pressure and slowing down the skin’s susceptibility to having its circulation cut off. In every one of the bedsore cases that I have reviewed, there was always something missing in the documentation either in the assessment, plan, implementation or all three. It all boiled down to one simple fact; pressure.
If the ulceration occurs without pressure then you can’t call it a pressure ulcer; you have to give it another name like arterial, venous stasis, diabetic or PVD ulcer. A pressure ulcer invariably happens only because of prolonged pressure, even though there are certain factors that make it happen faster for some than others like nutritional status, hydration, clinical condition, etc. However, if the pressure is intermittent the bedsore will be avoided or at least prevented from getting worse because the tissue is receiving the required blood circulation.
On the other hand, there is a fairly recent blurb from CMS (Centers for Medicaid and Medicare Services) called the “F314 tag” which offers a distinction between “Avoidable” and “Unavoidable” pressure ulcers.
“Avoidable” means that the resident developed a pressure ulcer and that the facility did not do one or more of the following: evaluate the resident’s clinical condition and pressure ulcer risk factors; define and implement interventions that are consistent with resident needs, resident goals, and recognized standards of practice; monitor and evaluate the impact of the interventions; or revise the interventions as appropriate.
“Unavoidable” means that the resident developed a pressure ulcer, even though the facility had evaluated the resident’s clinical condition and pressure ulcer risk factors; defined and implemented interventions that are consistent with resident needs, goals, and recognized standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate.
“Not surprisingly, this government tag identifying the theoretical existence of “unavoidable pressure ulcers” doesn’t change anything. If you look at the “defined and implemented interventions that are consistent with resident needs, goals, and recognized standards of practice;” you will find within it the duty owed to the patient/resident to alleviate those conditions that cause prolonged continuous pressure.
Moreover, if you follow the requirement to “monitor and evaluate the impact of the interventions; and revise the approaches as appropriate” you will find that as the wound deteriorated, becoming deeper, larger, more necrotic and foul smelling, the facility has to demonstrate that it tried every available technology and approach to prevent worsening and promote healing.
In summary, since the government has defined the theoretical existence of the “unavoidable pressure ulcer” it certainly opened the door for an affirmative defense, but it did set forth very stringent criteria that shift the burden of proof onto the facility to demonstrate that the pressure ulcer occurred and deteriorated even though the continuous pressure had been alleviated while all other needs were being met and all available treatment modalities employed.
About the Author
Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.