Vol. 19 •Issue 16 • Page 24
Cutting Risks In Home Care
No Escape from Lawsuits
Historically, the number of lawsuits filed against home health agencies (HHA) has been small. But as the demand for complex home health care services increases as baby boomers age, it seems likely that HHAs will also see an increase in malpractice lawsuits.
Reported home health malpractice cases are typically based on negligent hiring, negligent supervision, lack of supervisory oversight, alleged failure to prevent or properly care for bedsores, failure to properly insert and manage catheters and failure to monitor and prevent various complications of diseases like diabetes.
Negligent hiring includes employing incompetent and unskilled personnel. In one case, an aide stabbed an elderly patient with scissors. The plaintiff alleged the HHA was negligent for failing to check the employee’s background, which included a history of drug use and a criminal record. The jury found in favor of the plaintiff and awarded $550,000.
In another case still pending, an elderly patient with dementia was allegedly murdered by a home health care worker. The patient’s estate has filed a civil lawsuit against the agency, claiming it employed incompetent and unskilled personnel.
Other lawsuits have focused on the alleged failure to properly treat and monitor bedsores. In a case filed in Louisiana, a paraplegic confined to a wheelchair received home care services from an RN three times per week. The RN was to teach the male patient how to care for bedsores on his hips. In the lawsuit, the patient alleged the RN visited only once per week and falsified her nursing notes. The HHA investigated the allegations and eventually fired the nurse.
The patient subsequently developed another bedsore on his buttocks two months later. He then alleged that, as a result of the nurse’s negligent care, the ulcer required surgical intervention. Although this case is also still awaiting a verdict, the court has allowed a jury to decide whether the nurse’s lack of attention was negligent and whether it caused the patient’s bedsore.
Other Liability Issues
Wound care is also a liability issue. In one case, a home health care agency provided post-operative wound care to a patient who had undergone liposuction. A home care worker left a 4-inch square dressing in the patient’s abdomen for four days. The trial court granted summary judgment in favor of the agency. The patient appealed, and the appeals court held that the HHA had exclusive control of the dressing at the time of the injury. This case is still under appeal.
Patients have sued home health agencies for allegedly failing to get patients to a hospital quickly. In one such case, a paraplegic patient lived in his own home but required assistance to visit his physician. HHA staff provided periodic home visits. During one visit, an aide detected blood in his urine and a subsequent LPN examination revealed the man had a swollen penis and scrotum. Both the aide and the LPN advised him to go to the hospital. They also advised the patient’s sister of his need to be examined. A family member took the patient to the hospital where he was examined, treated and discharged back home.
During the next routine home visit, the LPN again noted blood in his urine and instructed the patient to return to the hospital. The LPN did not call the patient’s family but did call the HHA to report the patient’s condition. The director of nursing took no further action.
The LPN visited the patient three days later and noted a swollen penis. He advised the patient to go to the hospital but again did not call his family or take any action to get him to the hospital. The LPN did again contact the director of nursing at the HHA. Two days later, the patient’s nephew took him to the hospital, where he required surgery to debride the gangrenous penis and received a suprapubic catheter.
In a court case filed later, the jury found in favor of the HHA. On appeal, however, the Louisiana appellate court held that the agency breached its duty to the plaintiff and failed to meet the standard of care for nursing by not ensuring the patient went to the hospital earlier. The appellate court found the patient also had some responsibility for his injury. First, given that the patient catheterized himself, he could have done so improperly and caused the initial infection. Furthermore, although he was disabled, the patient could have called his relatives for assistance in getting to the hospital. The appellate court awarded the man $250,000 but also ruled he was 50 percent negligent, reducing the damages to $125,000.
Plaintiffs will continue to file negligence claims against HHAs. Although they will never be immune to lawsuits, there are several factors that can decrease the likelihood of being sued.
Mary Kay Schwemmer is a partner in the Philadelphia law firm of White and Williams LLP.