By Nancy Collins, PhD, RDN, LD, NWCC, FAND
Most lawsuits start not because of poor medical care but because families believe promises were made and broken and they are angry.
If you speak to any health care attorney about the proliferation of lawsuits against hospitals, nursing homes, and health care providers (HCPs) over the last decade or so, you will engage in a conversation peppered with a variety of legal terms. These may include breach of duty, negligence, malpractice, wrongful death, statutory standard of care, or even criminal culpability. It is important to understand that these are formal words with specific legal meanings, and at least a few of them appear on every plaintiff complaint as the reason for the lawsuit.
This is in sharp contrast to every deposition I have ever read from a plaintiff—usually the surviving spouse or child/children of the deceased. These family members never use legal jargon but rather emotional terms that reveal the true reason they are suing. Unless the family member works in the medical field, they rarely criticize the actual medical care but rather express great sadness with the personal care and the way they were treated. Plaintiffs frequently remark about the lack of caring they felt in health care. It is these words that we must focus on if we are to understand the patient perspective and thereby improve patient satisfaction.
Chronic and nonhealing wounds are perhaps one of the most emotional issues, and the number of lawsuits because of wounds is staggering, in part because of this emotion. The word bedsore brings up feelings of neglect and guilt in daughters, sons, husbands, and wives. HCPs have documented a variety of terms over the years, including decubitus ulcer, pressure ulcer, and now pressure injury, but patients still call them bedsores and still do not know many facts about how and why they occur.
“My dad had a bedsore the size of my fist.” “My mother looked so dehydrated I do not think they gave her a drink in a week.” “My mother was losing weight so quickly that her clothing fell right off her.” These or similar statements are common declarations family members have made in deposition, not once but over and over in case after case. Many plaintiffs’ depositions are more riveting than best-selling novels as they describe the care, or lack thereof, they witnessed in graphic detail page after page.
They relate stories of how when they asked for help and were told “10 minutes,” but the 10 minutes turned into 2 hours. They tell of unanswered call bells, uncaring staff that never looked them in the eye, meals that were late and unpalatable, adult diapers that went unchanged, and in one extreme case, a son described how he called 911 from his mom’s nursing home room as a last resort to get some attention. He recounted with satisfaction how the nurses finally came running to his mom’s room when they surprisingly saw a huge fire truck and the EMS arrive!
Even though you might consider questioning whether the pressure injury was truly the size of a fist or if the nurses really ignored calls for help, don’t bother. In order to affect any real change in the number of lawsuits filed, we must focus on the beginning and not the outcome. The beginning is filled with glossy brochures, slick advertisements, caring intake coordinators or admission counselors for long-term care, and promises and reassurances. “Don’t worry about your dad. We’ll take good care of him.” This eases the fear and lets the family walk out thinking everything will be OK. Great expectations are established.
Health care facilities and those who operate them are the ones responsible for creating these unrealistic expectations, which lead to unmet needs. The unmet needs in turn lead to disappointment, and soon that turns to anger. The underlying cause for many lawsuits is this anger. The real question plaintiffs want answered was “Why did you tell me everything would be OK if you knew it would not be?”
It is shocking how little true and meaningful communication apparently occurs even when concerning life and death matters. How in the world can a daughter say she was “shocked” her mom died when a quick review of the medical record shows there was little hope for any other outcome? Didn’t anyone tell her the prognosis? Maybe they did, maybe they didn’t. But the fact that she claims not to know shows that whatever transpired was not effective and a new approach is necessary. Here is one idea I have always wondered about—What if we explained to family members that current staffing only allows for one nursing aide for every 10-12 patients and handed them a list of private duty agencies that they could contact to hire a nursing aide for more one-on-one care for a fee if that was what was desired? I know this is what I did when my own father was in a long-term acute care hospital with staff that seemed stretched to the limit. I would love to hear your comments on how you would set up more realistic expectations for patients and their families. Contact me at firstname.lastname@example.org.