Prior to the onslaught of liability claims against nursing homes in the late 1990s, taking photographs was a matter of course for senior living facilities. The photographs of pressure ulcers were used as a tool for monitoring progress of wound care and as proof positive of the stage or severity of a sore. This was thought to be an especially effective defense in a common scenario – especially when a patient was sent to the hospital for an extended stay or upon admission from another facility and there was evidence of a decubitus ulcer that didn’t develop under your facility’s care.
Perhaps your facility had a similar situation and when a suit was initiated you were named as a party for allegedly allowing negligent care. Following common logic, you produced these photographs complete with a timeline of events figuring this would exonerate your facility and clear you of any wrong doing. Actually, there is no good picture of a sore and this could lead to a claim.
What can an operator do to effectively insulate themselves from this potential liability? Simply put, from a risk management perspective, we suggest avoiding all photographs of pressure ulcers.
Risk managers agree that clear, complete, and unambiguous recordkeeping of the patient’s pressure ulcers, its measurements, stages and wound treatment are primary in deflecting liability. Being able to display an appropriate care response should aid tremendously in insulating you against most liability judgments. To that end, most information used to state your case with a photograph can be expressed on paper just as effectively but without the potentially damaging results that an unsightly image will portray.
Internally, your facility may have the means available to track the effectiveness of your wound care with photographs without allowing that data to be viewed by a plaintiff’s attorney. If for quality assurance purposes you track your wound care and keep those files separate from all other records, they may be protected as “privileged” information. However, you can’t use those same “privileged” and “protected” documents as a means to bolster you own case.
Based on the foregoing, there seems to be minimal benefit to you or the patient in taking photographs of pressure sores as part of your wound care protocol. As always, it’s best to consult your attorney on a case-by-case basis to discuss these issues. An open and frank dialogue between your insurer and broker about liability concerns and the care administered in your facility can help reduce the risk of incidents in the future.
A proactive claims management program can reduce the severity and frequency of claims, learn more here.
