Can We Talk?: The National Plaintiff's Advisory Panel? Pressure Ulcers, Litigation and the NPUAP's New Staging System

Joy E. Schank, RN, MSN, ANP, CWOCN; and Caroline E. Fife, MD, FAAFP, CWS, FUHM

Pressure ulcers are the most common reason for malpractice litigation against nursing homes and represent a substantial portion of claims against other sites of care including hospitals. The occurrence of a pressure ulcer also represents a significant reason for litigation against wound care practitioners at all levels of certification. Risk management experts, malpractice insurers, and defense attorneys have raised concern that the decision by the National Pressure Ulcer Advisory Panel (NPUAP) to change the staging definitions as well as the term pressure ulcer to pressure injury will increase the likelihood of pressure ulcer litigation or make meritless cases even harder to defend. When this concern was raised at the NPUAP’s consensus  conference in 2016, panel members responded that any potential impact on litigation was irrelevant because the staging system was a strictly clinical matter, not a legal one.1 However, given that some NPUAP  members with clinical credentials are engaged in legal expert testimony, often on behalf of plaintiffs, we are concerned that the NPUAP cannot claim to be detached from the legal ramifications of  these changes, and we feel that a discussion regarding potential conflicts of interest for the NPUAP is relevant.

NPUAP members have asserted that pressure ulcer litigation will not increase in response to the change in the staging definitions or the terminology because lawsuits occur over whether the standard of care was met. Although it is true that a pressure ulcer can occur as a result of negligent care, lawsuits often allege that the mere existence of a pressure ulcer is, in and of itself, evidence of negligent care. In 2010, the California Department of Justice (DOJ) funded a study to determine whether the presence of a severe pressure ulcer was forensic evidence that patient care was inadequate.2 This carefully conducted prospective study carried out in 64 top performing nursing homes demonstrated that even when the best possible care was provided to residents, Stage 4 pressure ulcers still occurred. Several patient comorbid diseases (eg, dementia, renal disease, and cardiovascular disease) were associated with the development of severe pressure ulcers. Despite the results of this study and others like it, both scientific and lay authors perpetuate the misconception that all pressure ulcers are preventable. There are powerful monetary incentives to do so. Although tort reform has capped punitive damages in many states, in some states compensatory monetary damage caps are lowered or even waved in cases of elder abuse, which accounts for the linking of pressure ulcer development to elder abuse3 and the sensitivity practitioners have expressed about the emotionally charged term injury, plus the new staging definitions. The Centers for Medicare and Medicaid Services (CMS) acknowledges that some pressure ulcers are “unavoidable”; however, there is no scientific consensus regarding which pressure ulcers are unpreventable and due, for example, to serious underlying medical conditions. The result is that pressure ulcer litigation devolves into a battle of the experts, with potentially millions of dollars riding on whether the plaintiff or the defense has the more convincing expert witness.

Exploring possible conflicts of interest regarding expert witness activities is difficult. Work as an expert witness is not considered a conflict of interest that must be disclosed when participating as a speaker during continuing medical education activities such as the NPUAP consensus conference. Physicians do not have to disclose expert witness fees under the Open Payments program5 mandated by the Affordable Care Act, which collects information about payments that drug and device companies make to physicians for travel, research, meals, and company ownership interests.

We attempted to evaluate this issue by performing a testifying search (Thomson Reuters Westlaw, Eagan, MN) of the individuals with clinical credentials (eg, nurses, physicians, podiatrists, dietitians) who comprise the 2017 NPUAP Executive Committee and Board of Directors, as well as all the living NPUAP Past Presidents. The testifying histories of 20 individuals were searched. To limit the cost, we accessed only data through 2014. Although the data available did not include the most recent years, 3 individuals were sufficiently active to have a testifying summary available which included an estimation of all monetary judgements.  Collectively, these individuals testified in 10 elder and vulnerable adult cases, 23 medical malpractice suits against medical facilities, 8 cases against physicians and other health professions, 19 cases dealing with medical malpractice procedures and treatment, 8 negligence cases, and 15 wrongful death cases. Their legal work resulted in a minimum of almost $10 million in judgments against health care institutions and clinicians. There are important caveats in that not all of these activities occurred while the individuals were NPUAP board members and not all cases involved pressure ulcers. Also, there were NPUAP board members who performed no expert witness testimony or minimal to no plaintiff work. However, the success rate of NPUAP members in securing monetary judgements on behalf of plaintiffs and the volume of some member activities caused us to wonder if NPUAP actually stands for The National Plaintiffs’ Advisory Panel.

It is important to note that testifying searches only identify depositions and trial testimony. Individuals who act as legal experts commonly provide expert opinions on cases for which they are never deposed. Thus, this testifying search reveals only a portion of the legal activities in which NPUAP members likely engaged. Transcripts of the depositions and sworn testimony included as part of this search indicate that, at least for some NPUAP members, working as a legal expert provides a significant income. Furthermore, at deposition, affiliation with the NPUAP often was cited to further validate the individual’s professional credentials and thus increase the perceived weight and veracity of their expert opinions.

We believe that the leveraging of the NPUAP by members for expert witness testimony should be addressed openly by the NPUAP. Although states have requirements for experts, many physician specialty societies have created policies for their members. For example, the Society of Thoracic Surgeons (STS) has created a statement of qualifications and guidelines for the behavior of STS members when acting as experts in the legal system. These guidelines6 include requiring physician experts to have had a current, valid, and unrestricted state license; privileges to practice at an accredited institution; to be prepared to document the percentage of time spent in serving as an expert witness; and to be willing to disclose the amount of compensation paid for such activities as well as the total number of times the expert has testified for the plaintiff or the defendant. Unfortunately, standards like these are not endorsed by any nursing organizations. Although nursing experts follow federal and state requirements for expert witnesses, it is possible for a nurse to provide expert witness testimony even though he/she has not provided direct patient care for several decades. We think this is unacceptable when the case pertains to pressure ulcer standards of care.

We believe that providing expert testimony can be a vital part of professional life and can help ensure that accurate information is available during judicial proceedings. Some malpractice law suits are meritorious, and we support the right and even the obligation of clinicians to provide expert testimony on both sides. However, given the fact that the NPUAP creates standards that have profound legal implications and that its members are gainfully employed as legal expert witnesses, leveraging their NPUAP affiliation to do so, the NPUAP cannot credibly claim the work of the panel is independent from its legal ramifications.

In conclusion, our findings do not prove that the expert witness activities of NPUAP board members motivated the NPUAP staging definitions and terminology changes. However, the amount of plaintiff expert witness work by some NPUAP board members creates the appearance of a conflict of interest. We believe the NPUAP should establish standards for disclosure of expert witness testimony for all its members, given the profound legal implications of its work.

 

References

  1. Schank J. Guest Editorial: Changing Pressure Ulcer Terms: Consensus or Conspiracy? Available at: www.o-wm.com/article/guest-editorial-changing-pressure-ulcer-terms-conse.... Accessed November 1, 2017.
  2. Liao S, Baker M, Lower J, et al. A Multi-site Study to Characterize Pressure Ulcers in Long-term Care under Best Practices. US Department of Justice Document No 231614. August 2010. Available at: www.ncjrs.gov/pdffiles1/nij/grants/231614.pdf. Accessed November 1, 2017.
  3. Ayello EA, Capitulo KL, Fife CE, et al. Legal issues in the care of pressure ulcer patients: key concepts for health care providers: a consensus paper from the International Expert Wound Care Advisory Panel. Palliat Med. 2009;12(11):995–1008.
  4. Centers for Medicare and Medicaid Services. CMS Manual System. State Operations Provider Certification. Pub. 100.07. August 2008. Available at: www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/downloads/R36SOMA.pdf. Accessed February 2, 2018.
  5. Centers for Medicare and Medicaid Services. Open Payments. Available at:  www.cms.gov/openpayments/. Accessed Novemberr 1, 2017.
  6. The Society of Thoracic Surgens. Statement on the Physician Acting as an Expert Witness. 2011. Available at: www.sts.org/about-sts/policies/statement-physician-acting-expert-witness. Accessed February 2, 2018.

 

Caroline Fife, MD, FAAFP, CWS, FUHM, and Joy Schank, RN, MSN, ANP, CWOCN, wish to disclose they both work as medical malpractice expert witnesses, most often but not exclusively for the defense.