Beware of the Photograph
Prior to the onslaught of liability claims against nursing homes in the late 1990s, taking photographs was a matter of course for senior living facilities. These photographs of pressure ulcers were used as a tool for monitoring progress of wound care and as proof positive of the stage or severity of a sore. This was thought to be an especially effective defense in a common scenario – especially when a patient was sent to the hospital for an extended stay or upon admission from another facility and there was evidence of a decubitus ulcer that didn’t develop under your facility’s care.
Perhaps your facility had a similar situation and when a suit was initiated you were named as a party for allegedly allowing negligent care. Following common logic, you produced these photographs complete with a timeline of events figuring this would exonerate your facility and clear you of any wrong doing.
“What happened was just the opposite,” says Kasie Ruhlig, underwriter for the HealthCap insurance program based out of Ann Arbor, Michigan. “Jurors, who for the most part don’t have any clinical background and know very little about care for the elderly, are presented with ugly and sometimes horrifying images. The focus of the jury isn’t on timelines but rather the plain reality that the person photographed suffered. Even if the sore(s) decreased in severity, over time there had to be negligent care. Frankly, there’s no good picture of a pressure sore.”
So what can an operator do to effectively insulate themselves from this potential liability? Simply put, from a risk management perspective, we suggest avoiding all photographs of pressure ulcers.
All risk managers agree that clear, complete and unambiguous recordkeeping of the patient’s pressure ulcers, its measurements, stages and wound treatment are primary in deflecting liability. Being able to display an appropriate care response should aid tremendously in insulating you against most liability judgments. To that end, most information used to state your case with a photograph can be expressed on paper just as effectively but without the potentially damaging results that an unsightly image will portray.
Angie Szumlinski of HealthCap Risk Management Services, Inc. explains that “no photograph of a wound can replace an accurate measurement and narrative description.” Her company strongly recommends that caregivers responsible for the assessment and treatment of wounds be provided with appropriate education and support to ensure competency.” She suggests long-term care operators visit the National Pressure Ulcer Advisory Panel (NPUAP) website when establishing or reviewing their wound program.
“Strictly from a legal perspective”, says J. Scott Myers of Myers Carden & Sax LLC, an expert in the field of nursing home and insurance defense law, “I explain to my clients that there are few benefits to their defense associated with photo images of a decubitus ulcer. If you maintain that there are qualitative clinical advantages that assist in the patient’s care then by all means. However, from the various discussions with long-term care operators that just doesn’t seem to be the case.”
Internally, your facility may have the means available to track the effectiveness of your wound care with photographs without allowing that data to be viewed by a plaintiff’s attorney. If for quality assurance purposes you track your wound care and keep those files separate from all other records, they may be protected as “privileged” information. However, you can’t use those same “privileged” and “protected” documents as a means to bolster you own case.
Based on the foregoing, there seems to be minimal benefit to you or the patient in taking photographs of pressure sores as part of your wound care protocol. As always, it’s best to consult your attorney on a case-by-case basis to discuss these issues. An open and frank dialogue between your insurer and broker about liability concerns and the care administered in your facility can help reduce the risk of incidents in the future.
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