This medical malpractice case study, presented by NSO and CNA, involves a nurse practitioner working as an independent contractor in an aging services setting.
The insured was an adult-gerontology nurse practitioner (AGNP) who worked at a long term care facility (facility) as an independent contractor providing services as the Facility Nurse Practitioner and Wound Care Nurse Practitioner. The AGNP had been a licensed AGNP for more than 20 years. Prior to becoming an AGNP, she had been a registered nurse for approximately 20 years. The AGNP had received an advanced practice wound, ostomy and continence certification through the Wound, Ostomy and Continence Nursing Certification Board (WOCNCB®), and she consistently maintained active certification through the requirements established by the WOCNCB®.
Upon commencing her role with the facility, the facility and the AGNP had a verbal agreement on the roles and responsibilities of each party, but they never executed a formalized written contract. As part of the verbal agreement, the AGNP agreed to bill third party payors and healthcare insurance providers for the services she provided to the facility’s residents through her limited liability company (LLC). The AGNP was the sole proprietor and only employee of the LLC. As an independent contractor, she did not receive direct monetary compensation or remuneration from the facility.
The AGNP began treating a resident at the facility with multiple pressure injuries. The patient’s medical diagnoses included the following, among others:
- Vascular dementia with behavioral disturbance;
- Malnutrition and dehydration;
- Chronic urinary tract infections;
- Stage III renal disease;
- Gait dysfunction;
- Metabolic encephalopathy;
- Major depressive disorder;
- Chronic hypokalemia.
From a behavioral perspective, the resident was challenging. He remained very mobile and wandered throughout the facility. The health information record contained multiple entries describing his wandering in and out of the rooms of other residents, as well as rummaging through and taking their belongings.
The resident experienced numerous falls at the facility, with his last fall resulting in a left radius and ulnar fracture as well as a left proximal humerus fracture. Following the fractures, the resident experienced an overall gradual decline in his physical health. The healthcare information record indicated that, despite increasing his caloric and protein intake, he progressively lost weight.
During his rehabilitation, the physical therapist documented that the resident’s mobility was slowly deteriorating, despite receiving therapy. The loss of mobility resulted in the progressive development of pressure injuries. The resident developed pressure injuries to his sacral area, right buttock, left heel and left hip.
The AGNP documented the injures as follows:
- Sacrum: 9.5 x 10 x 0.2cm, unstageable, 85 percent necrosis and slough with malodor
- Right Buttock: 4.5 x 3 x 0.1, Stage 4, 70 percent necrosis and slough
- Left Heel: 1.8 x 0.8 x 0.2, Stage 4, with serosanguineous, yellowish in color with malodor
- Left Hip: 5x6, unstageable, 100 percent necrosis
The resident was hospitalized seven times over a six-month period for infections related to his pressure injuries. During this time, a percutaneous endoscopic gastrostomy (PEG) tube was inserted to increase nutrition and a peripherally inserted central catheter (PICC) was inserted for intravenous antibiotic therapy.
Following discharge from the hospital, and readmission to the facility, the AGNP was again consulted to treat and manage the resident’s wounds. Over the next three weeks, the AGNP attempted chemical debridement with Santyl®
without success. The AGNP referred the resident back to the hospital for a third surgical debridement, but it was determined that he was not a surgical candidate. Due to the resident’s prior history of unsuccessful chemical debridements, the AGNP elected to begin negative pressure wound therapy (wound vac) to three of the four pressure injuries. Although not documented, the AGNP later stated that she believed a wound vac could be of benefit due to the large amount of drainage (which she documented as “moderate”) and the proximity of the pressure injuries to fecal contamination.
The AGNP’s documentation was as follows:
- Chief Complaint: Wounds
- Reason for Visit: Multiple wounds
- PMH: anemia, chronic renal disease, dementia, hypertension, high sodium, acute kidney injury, dehydration
- Exam: A/P: Sacral Stage 4, left hip stage 4 with moderate amount of tan exudate drainage, right ischial stage 4 with moderate amount of tan exudate drainage, left heel unstageable, left antecubital wound, left upper back with moderate amount of tan exudate drainage, hx CKD, hx dementia, hx anemia, surgical debridement of necrotic tissues x 2 at last hospitalization, still large amounts of necrosis noted to wounds.
- Plan: Apply wound vac to the left hip, left antecubital and left upper back for 72 hours. Wound debridement with attempted chemical debridement with Santyl and medihoney to left heel. Obtain specialty mattress for resident and reposition q hourly.
Over the next few weeks, the resident’s stage four wounds appeared stable, and the left heel wound was noted to have completely healed. However, the specialty mattress was not ordered. The resident refused to eat, and, notwithstanding the use of PEG tube feeding, he continued to lose weight.
The facility’s director of nursing and a social worker met with the resident’s family to discuss his current status, including wounds and nutrition. They offered all options, including a diverting colostomy to reduce the ongoing risks of fecal contamination in the wounds. The family declined and understood that ongoing treatment would not be in the resident’s best interest. The family opted to make the resident a do not resuscitate (DNR), do not hospitalize (DNH) and requested a hospice consultation. The resident passed away ten days after being placed on hospice.
The family filed a lawsuit against the facility and the AGNP, individually. They contended that the resident’s pressure injuries were preventable and treatable, and that negligent treatment by the defendant health care providers permitted his pressure injuries to develop and worsen. Although the family lacked any independent knowledge of the AGNP, the family contended that the use of the wound vac on the resident’s wounds was below the standard of care and, thus, prevented the healing of the wounds.
Allegations against the AGNP included:
- Improper/untimely management of aging services resident
- Improper use of negative pressure wound therapy
- Failure to adequately document a resident’s diagnosis, condition and treatment in a manner that provides an accurate reflection of a resident’s condition
- Failure to maintain a current knowledge of clinical practice, treatment, and equipment.
Risk Management Comments
Initially, defense counsel believed this case to be defensible. However, two experts reviewed the case and reported that the insured AGNP’s decision to treat the resident’s pressure injuries with a wound vac failed to adhere to the standard of care. Moreover, both experts raised concerns regarding the AGNP’s documentation, competence, and experience as a wound care practitioner.
The case was referred to a third expert for review. This expert indicated that he would not have used a wound vac under these circumstances, but, nevertheless, stated that the facts may have supported some defense of the standard of care. Given the expert reviews, it was not clear if the defense team would be able to assert that the standard of care had been fulfilled.
During her deposition, the AGNP seemed to lack knowledge and competence on standards of practice with respect to wound care. Upon questioning, the AGNP stated that debridement is standard practice on “non-healing” wounds. The answer would have been more direct if she had stated it was used for wounds with necrotic tissue, as debridement is the process of removing necrotic tissue. The AGNP also had difficulty defining the difference between Santyl® and Medihoney®, which are two commonly used wound treatments of which a “wound care specialist” should be aware. The insured also was unable to testify to the types of specialty mattresses utilized at facility, although she testified that she placed the orders for them. The AGNP also testified that she was not conversant with the state and federal regulations applicable to long term care facilities.
Following the deposition, it was clear that the plaintiff’s counsel would criticize the AGNP’s competence, decision-making, and care provided. They also would probably assert that improper use of a wound vac impeded healing and caused infection.
The defense team felt that the verbal contract between the facility and the insured would also be a potential area of additional liability exposure.
Given the testimony of multiple experts who raised concerns with the wound vac treatment, the insured requested that the claim be resolved.
The claim resolved on behalf of the insured AGNP with a total incurred of greater than $275,000.
(Note: Figures represent the payments made on behalf of the insured nurse practitioner and do not include any payments that may have been made from any co-defendants. Amounts paid on behalf of the co-defendants named in the case are not available.)
Risk Management Recommendations
- Document the clinical decision-making process and rationale for any deviations in practice from established clinical protocols, guidelines or standards.
- Document all patient-related discussions, consultations, clinical information and actions taken, including any treatment orders that are provided.
- Remain current regarding state requirements, clinical practice, medication, treatment and equipment utilized for the diagnosis and treatment of acute and chronic illnesses and conditions related to clinical specialty.
- Utilize evidence-based clinical practice guidelines or protocols when establishing a diagnosis and providing treatment, and document the clinical justification for deviations in protocols.
- Engage an attorney to review all contracts involving consulting services for a clinical facility prior to signing and executing such contracts.
- Read the employment contract carefully to determine the full extent of responsibility being assumed, and request that legal counsel negotiate the removal of inappropriate, overly broad or undesirable descriptions of duties and responsibilities.
- If agreeing to a contract that includes overall responsibility for supervising the wounds in the facility, ensure that the contract provides for the following:
- Mandatory education regarding all aspects of wound management, including infection control techniques;
- Policies and protocols related to proper wound management, including infection control;
- Direct, frequent observation of the wound care within the facility; and
- Immediate training for staff who are not performing within standards and/or complying with protocol.
These are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. This material is for illustrative purposes and is not intended to constitute a contract. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, NSO websites are provided solely for convenience, and Aon, AIS, NSO and NSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., NSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.
Nurses Service Organization is a registered trade name of Affinity Insurance Services, Inc., a licensed producer in all states (TX 13695); (AR 100106022); in CA, MN, AIS Affinity Insurance Agency, Inc. (CA 0795465); in OK, AIS Affinity Insurance Services, Inc.; in CA, Aon Affinity Insurance Services, Inc., (CA 0G94493), Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY, AIS Affinity Insurance Agency.