Litigation or Redesign: Improving Pressure Ulcer Prevention

In this issue of the Journal of the American Geriatrics Society, Voss et al. demonstrate that lawsuits based on the contention that long-term care (LTC) facilities do not adequately protect residents from pressure ulcers are on the increase. Furthermore, juries side with plaintiffs, awarding higher damages when multiple risk factors, especially inadequate nutrition, are present. Even when LTC facility owners and operators believe they provide adequate care, they quickly settle out of court to reduce costs.1 A shocking report, “The Faces of Neglect: Behind the Closed Doors of Texas Nursing Homes,”2 by the National Citizens' Coalition for Nursing Home Reform (NCCNHR) and the Texas Advocates for Nursing Home Residents (TANHR) provided graphic pictures of residents showing evidence of their specific neglect. Many pressure ulcers pictured are among the worst seen in practice. If this was a picture of my mother, I would be outraged! A report prepared for Representatives Ciro D. Rodriguex and Gene Green for the U.S. House of Representatives provided a snapshot of Texas nursing home conditions.3 During the period from March 2001 to August 2002 (coinciding with Voss et al.), the Online Survey, Certification, and Reporting (OSCAR) database and the nursing home complaint database were accessed to determine the compliance status of nursing homes in Texas. Although the report acknowledged that nursing homes may exhibit a “yo-yo pattern” of compliance and noncompliance, 86% of all facilities in Texas had at least one violation that could result in more than minimal harm and levels of staffing below which nursing homes are at greater risk for quality problems were found. Failing to prevent or properly treat pressure ulcers and failing to provide adequate nutrition and hydration were among the most common actual harm violations. TANHR and NCCNHR contend that families are forced to turn to the civil justice system to seek remedies for injustice and to provide a deterrent for future neglect and abuse.2 Sadly, those seeking humane care look to civil judgments as an incentive for nursing homes to provide better care and are often disappointed because wrongful death litigation is too little too late. At best, a successful lawsuit can extract a price for harm done. If quality care cannot be legislated or adequately encouraged through regulatory means, nursing home residents need every deterrent tool possible. The TANHR and NCCNHR expressed concern that caps on damages remove the only real tool powerless residents and families have for seeking change. Tort reform measures such as those passed during the 78th Texas Legislature limiting potential judgments erect a major hurdle to responsive litigation, creating barriers to the practical enforcement of a resident's rights to quality care through the courts. Voss et al.1 demonstrate that the message that residents and families are trying to send to nursing homes resonates with jurors. Juries are awarding extraordinarily high verdicts, and nursing homes and insurance companies recognize their powerlessness to avert the wrath of juries, quickly settling claims out of court or mobilizing to seek legislative passage or tort reform. Has anyone interviewed residents and their families? What do they want? Are families trying to extract a financial legacy from the nursing home in the name of their loved ones, or are families using civil justice as one way to get even with a system that is perceived as turning its back on their mothers and fathers? Given a choice, would families rather have improved care or a long, increasingly unrewarding journey in the civil justice system? One family in Texas used a portion of a judgment to endow a fund in the Center on Aging to provide annual conferences for caregivers and to support a library. The wife of the patient, an educator, believed in creating a better future through education. Facility practice, public policy, and evidence-based practices send mixed messages about the standard of care. The Centers for Medicare and Medicaid Services (CMS) is focusing on improving quality measures, including on pressure ulcers, and is providing on-line data for families to access when making decisions about nursing home placement. Although this system may be imperfect, it is one method of communication with the public. Recently, one author4 challenged readers to consider striving for six-sigma care in the area of pressure ulcers. The industrial standard of quality improvement, the quest for six sigma, would mean that fewer than six standard deviations from the mean, or less than 3.4 pressure ulcers per million, would occur. Putting pressure ulcers in perspective, according to Nursing Home Compare, the incidence of pressure ulcers in nursing homes is 11% overall (http://www.nursinghomecompare.gov).5 If we were manufacturing automobiles with this many faults, the public would be outraged, and we would be put out of business. The two problems highlighted by Voss et al., pressure ulcers and adequate nutrition, are complex. We know that evidence-based guidelines, such as those created by the Agency for Health Care Policy and Research more than a decade ago,6,7 may prescribe best practices, but elucidating these practices is different from implementing them. The process of translating knowledge to practice has been the focus of two recent projects. Qualis Health, the Quality Improvement Organization for Washington state, directed the National Nursing Home Improvement Collaborative, a CMS-funded initiative. Qualis Health worked with 61 nursing homes in 39 states using an Institute for Healthcare Improvement model to bring about change in practice through incremental rapid-cycle change. Many of the teams that participated were an inspiration to those eager to see research translated to practice. Qualis Health will be presenting data related to the processes and outcomes, but the take-home message is that the team needs to be invested in improving outcomes. Teams that listened to members in all roles were enriched and improved outcomes. Despite the cohesion, outcomes improved more than the national average but did not fulfill all expectations of the ambitious teams. The Agency for Healthcare Research and Quality funded another research translation project, “Real-Time Optimal Care Plans for Nursing Home QI” (unpublished data). The results of this work, not yet in the public domain, suggest that improved methods of standardized documentation and weekly feedback reports to those at the bedside might facilitate data-based decision making, resulting in improved care, yet another study suggests that care cannot be improved until documentation can be standardized to reflect processes of care, rather than charting to meet regulatory requirements.8–10 Baseline data are essential to monitoring and improving care. Some researchers11,12 call attention to the processes of care that must be performed relentlessly to improve care. These processes of care are complex. Another study identifies the amount of nursing time needed to deliver care that has an effect on outcomes.13 In this complex problem, there are a number of concerns that need to be addressed, including the economics. Perhaps the most vexing of the concerns is who benefits. Nursing homes have limited resources with which to bring about change. If an increase in staffing reduces a number of negative outcomes, residents and their families benefit through greater quality of life and peace of mind. In fact, Medicare/Medicaid dollars may be saved by reducing the number of negative outcomes. The nursing home that invested in improved staffing to bring about the change may not benefit financially. What is the incentive? Alternatively, if a nursing home produces somewhat adequate care, makes a reasonable profit, and has occasional lawsuits, who pays? The insurance company or the corporation owning the facility. If the insurance company pays, the nursing home has little incentive to improve care. If the corporation pays, shareholders may be unhappy with the bottom line. It seems that rewards for improving outcomes should be returned to facilities producing the best outcomes. Staffing levels should be supported and caregivers rewarded for remembering to perform care relentlessly. It may be time to change the way health care is delivered. The Institute of Medicine (IOM), through the Committee for the Quality of Health Care in America, has released sentinel reports calling for the redesign of health care.14,15 If patient safety and outcomes are to be improved, the IOM recommends a continuous healing relationship, customized care based on patient needs and values, placing the residents and their families at the source of control, sharing information between patients and providers, using evidence-based decisions, making safety a priority, providing transparency, anticipating needs, decreasing waste, and fostering cooperation among clinicians and institutions.14 Would implementation of these recommendations improve patient outcomes? Would lawsuits decrease in frequency if residents and families were part of the care decisions? Would we save healthcare dollars? We don't know. We do know that the present system is not working well. It is time to work on the way in which we deliver care! Knowing is not enough; we must apply. Willing is not enough; we must do. Goethe Dr. Bergstrom acknowledges the following individuals for critical review during the preparation of this paper: Susan D. Horn, PhD, ISIS ICOR, Salt Lake City, UT, and Janice Barrocas, JD, and Diane Perrson, PhD, both of the Ombudsman Program and the Center on Aging at the University of Texas Houston. Financial Disclosure: Dr. Bergstrom has received no financial support for research, consultantships, or speakers' forums for this paper. She has no company holdings (e.g., stocks) or patents. Author Contributions: Dr. Bergstrom is solely responsible for the literature and conceptualization of this paper. Sponsor's Role: There was no sponsor for this article.