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Attorney Sanga Turnbull

Kennedy End of Life Pressure Sores; A Convenient Nursing Home Excuse or a Reasonable Explanation?

On Behalf of | Jan 28, 2020 | General

The Kennedy Terminal Ulcer is considered an unavoidable skin breakdown or skin failure that occurs as part of the dying process. Research is limited but the literature suggests that Kennedy Terminal Ulcers are typically pear-shaped, red/yellow/black, similar in appearance to an abrasion, and tend to occur suddenly in the sacral/coccygeal region not long before death.

The skin breakdown in the sacral/coccygeal area was first noted by Karen Lou Kennedy and other healthcare workers at the Byron Health Center, an intermediate care facility in Fort Wayne, IN, in 1983. The ulcer occurred despite preventive measures. Skin deterioration progressed rapidly, even in the course of a single day.

In 2010, NPUAP released a statement defining unavoidable to mean “that the individual developed a pressure ulcer even though the provider had evaluated the individual’s clinical condition and pressure ulcer risk factors; defined and implemented interventions that are consistent with individual needs goals and recognized standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate.”

This statement has more or less been codified under Federal Code of Regulations 42 CFR 483.25(b) which states:

Based on the comprehensive assessment of a resident, the facility must ensure that –

(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers and does not develop pressure ulcers unless the individual’s clinical condition demonstrates that they were UNAVOIDABLE;

The question that often arises when a resident develops a pressure sore and dies shortly thereafter is whether the ulcer that led to their death was avoidable or whether the ulcer was unavoidable because they were dying?

In a case I recently litigated this issue was vigorously debated among medical experts on both sides. Our experts a forensic medical examiner, vascular surgeon and nurse practitioner argued the lack of adequate care caused the ulcer which led to a systemic infection which eventually caused our client’s untimely death. The nursing home on the contrary argued because the resident was dying from the combination of various medical conditions the sore was simply a natural outcome of that process. In other words the bedsore, despite the best of care was unavoidable. What did we do to turn the argument in our favor and force the nursing home to the settlement table?

F-Tag 314! State and Federal surveyors use the requirements outlined in this regulation to judge whether a pressure sore is “unavoidable” For the pressure injury to be unavoidable, the nursing home must meet a four-part test:

  • Evaluate risk factors such as lack of mobility, incontinence or nutritional deficiencies;
  • Implement interventions (i.e. turning and repositioning, pressure relieving devices, and nutritional supplements, etc.);
  • Monitor and document the impact of those interventions, and
  • Report progress to the physician and ensure interventions are timely ordered and implemented, where appropriate.

During cross-examination of the nursing home’s expert witnesses and care providers they conceded that the facility failed to reasonably assess our client’s nutritional needs given the recent development of the wound as well as failed to timely turn and reposition her due to documented understaffing at the facility. Ultimately their experts conceded that if the facility failed to follow any of the steps outlined in the regulations as reflected in their documentation in the medical chart they could not state within a reasonable degree of medical probability that the sore was unavoidable. Armed with those concessions the nursing home, who initially explained away the sore to the family by citing our client’s medical diagnoses as an excuse, were forced to acknowledge in litigation that was a poor explanation.

If your loved one passed away with a pressure sore and it was explained to you that it was an unavoidable end of life injury, to learn whether that was a reasonable explanation or simply an excuse, speak with our pressure injury attorneys.