Emerging liability: Don't be caught unaware
Emerging liability: Don't be caught unaware
By Elizabeth E. Hogue, JD
Health Care Attorney
Elizabeth Hogue, Chartered
Burtonsville, MD
The honeymoon is over for the home care industry as far as malpractice claims go. Both home health agencies and home medical equipment companies must face the fact that managing the risks of legal liability have become part of the routine business of home care.
Two recent lawsuits in which home care providers were accused of liability illustrate this point. The first suit attempts to hold a Florida home care provider liable for administering intravenous fluids that were apparently improperly mixed by the fluid manufacturer.
In this case, a 2-year-old boy in Stuart, FL, died this past February from an improper concentration of dextrose in the daily dose of intravenous fluids he needed to stay alive, according to the local medical examiner.
The intravenous fluids that were apparently improperly mixed came from Coram Health Care in Boca Raton, a branch of the Denver-based national company that provides intravenous fluids to home care patients. Coram had supplied the fluids to the child for about two years without any incident.
The bag with the incorrect dose was actually marked with the correct concentration by technicians and pharmacists at Coram, though laboratory analysis showed the dextrose level was more than 60% when it should have been about 10%.
After receiving the wrong concentration, the toddler had convulsions, became comatose, and then died at a local hospital.
In the second case, a home health agency and the nurse responsible for the patient's care were recently sued in the Circuit Court for Anne Arundel County, MD, for the physical and emotional deterioration of a diabetic patient who had a gangrenous foot ulcer, even though the agency and the nurse followed all policies and protocols for diabetic wound care.
In this case, Staff Builder's Home Health Care of Baltimore assigned Kathy Douglas, RN, to care for Frank P. Thomas Sr., an elderly diabetic patient. The plan of care for Thomas included treatment of an ulcer on his toe.
Court documents filed on behalf of the patient allege that the nurse visited Thomas four times in the eight weeks before he saw a podiatrist who diagnosed advanced gangrene. Douglas observed and dressed the ulcer each time she visited Thomas.
Nonetheless, Thomas was admitted to North Arundel Hospital three days after he received the diagnosis of advanced gangrene. A few days later he underwent amputation of two toes of the left foot, according to the lawsuit.
About a month later, he underwent an above-the-knee amputation of the same leg. Although the lawsuit makes no connection between the amputation and Douglas' ultimate death, the complaint, made by the patient's family, does indicate that his general condition, physical and emotional, deteriorated substantially after the surgery, while he was in home care.
Home care providers are understandably concerned when they read about cases such as those described above, in which it appears that despite having followed their policies and protocols, the agencies were still sued. Providers would do well to translate these concerns into concrete action within their own organizations to help avoid similar incidents.
Diligence required
In the lawsuit involving improperly mixed intravenous fluids, for example, the allegations of the patient's family seem to be based on the obligation of the fluid manufacturer and its employees to mix fluids properly according to physicians' orders. Courts are likely to conclude that this obligation on the part of organizations and their staff members is absolute. That is, home medical equipment companies that supply intravenous fluids are legally required to do whatever is necessary to make certain that they supply appropriate fluids.
A reasonable response to this stringent requirement may be that, although companies routinely implement sophisticated systems to ensure that prescriptions are carefully checked and rechecked to avoid errors, no system is foolproof. No matter how meticulous personnel may be, errors are still bound to occur.
Courts are likely to give little credence to this argument. The standard to fill prescriptions accurately is absolute, according to common law as determined by the courts. Even though it may seem that an IV fluid maker would be the one liable for improperly mixed fluids, the courts also are likely to hold the care provider who administers the fluids liable. As many hospital-based home care providers are establishing home medical equipment and infusion therapy companies, this point is especially important. Thus, home care providers need to take the following action:
* Implement or update current pharmacy systems to prevent errors in filling prescriptions so that they clearly comply with custom and usage in the marketplace for intravenous fluids. This will catch any errors such as improperly mixed fluids.
* Implement or update current systems for continuous quality improvement so that even errors that do not harm patients do not involve legal liability. Updating quality improvement programs will also help bring potential problems to the attention of management, so corrective action can be taken to prevent more serious mistakes.
It also is important to note that the home health agency may have some liability for improper administration of intravenous fluids in cases such as the one described above. Nurses from agencies that administer such fluids have an obligation, for example, to check the label on the fluids to make certain that, as far as possible, the fluids administered are correct. Specifically, if the label on the fluids indicate that the medication is incorrect or the fluids have been mixed in improper proportions, nurses responsible for administration have an obligation to catch those errors.
In the lawsuit that alleges improper wound care, the standard of care is less clear primarily because these standards are changing rapidly, as clinicians learn more about what causes wounds to develop and heal. For example, most practitioners can remember when the application of betadine was considered to be consistent with applicable standards for wound care. There is now general agreement that the standard of care specifically excludes the use of betadine.
Because of this lack of clarity with regard to wound care, home care providers must rely on careful documentation in order to defend themselves against lawsuits such as the case involving the diabetic patient. The following are three ways to improve documentation of wound care:
* Take pictures of wounds.
The best documentation of wound care is photographs taken on a regular basis. Although the consent of patients is clearly required in order to take photos, agencies are well-advised to include consent to taking pictures in the consent form that patients routinely sign upon admission to home care. Refusal by patients to consent must be strictly honored and documented.
* Measure wounds accurately.
In addition to photographs, written documentation regarding the condition of wounds is essential. It is important for staff to measure carefully both the depth and width of wounds on each visit, as opposed to making vague descriptions of wound size such as "about the size of a quarter." Staff also must carefully document the color of any discharge from wounds and the odor, if any, of patients' wounds.
* Challenge improper physicians' orders.
Some physicians have not kept up to date on appropriate standards of wound care. When agencies receive orders for improper treatment, they have a legal obligation to obtain changes in physicians' orders or to refuse to administer improper care. *
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