Measuring Damages in a Pressure Injury Case

How do you put a value on the pain caused by a pressure injury? These wounds can lead to severe suffering, infection, hospitalization, and even death. Accurately measuring damages is critical to achieving justice for victims and their families. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Matthew Heimlich to discuss how damages are evaluated and presented in pressure injury cases.

Schenk: 

A stage four pressure injury, or for lack of a better word, a big gaping hole in your body, can be very painful. The question is, how do you convey that pain to the jury? I’m attorney Rob Schenk. This is the Justice for Residents podcast, and this week we welcome Matthew Heimlich, a Chicago nursing home lawyer who has obtained numerous six and seven-figure results in pressure injury cases, and we’re talking about the evidence that demonstrates pain, how to find it, and why some jurors get it while others don’t.

Stick around.

Intro

Schenk:

That was certainly a rockin’ jingle. Welcome back to the Justice for Residents podcast. Awesome conversation with Matthew Heimlich. But your homework is going to be to go back and listen to episode 205, where we talk about Co-Morbidities, Unavoidability, and Pressure Injuries, and we did that with Andrew King, Attorney Andrew King.

And then I would say there’s a couple of episodes that I would check out again with… on the medicine side of pressure injury cases. Both of those were with guest Martha Kelso, who is a wound expert. That’s episode 138, which was, “What Prevents Pressure Injuries from Healing,” and then 135, which was, “Understanding the Pressure Injury Stages.”

Like how, what are the characteristics that we look at when figuring out if a wound has progressed from one stage to the other. So that’s your homework, episode 205, which came out in 2024, and then 138 and 135, which both came out in, guess the beginning of 2020, end of 2019. That’s your homework.

Guest Intro

Schenk:

Now we’re gonna get into the rib eye and fingerling potatoes of the episode. Matthew Heimlich is a partner at Mahlmann Law in Chicago. His practice focuses primarily on representing residents and their families in nursing homes and assisted living negligence cases throughout Illinois. He has achieved numerous six and seven figure results in cases involving pressure injuries, including a 1.1 million verdict for a hospital-acquired pressure injury.

Common Injuries Resulting From Pressure Injuries?

Schenk:

We’re happy to have this conversation with Matthew. Matthew, can you just run through some of the more typical negative outcomes from a pressure injury? 

Heimlich: 

Yeah, pressure injuries are really insidious. They really can end up having a whole host of effects on the resident that it’s more than, even just the wound that you end up seeing.

The first most obvious thing is the skin breakdown and the tissue destruction. Even if it’s just that, even if it heals, you, you this resident now has a permanent loss of skin integrity to that area. So their skin is never gonna be the same. It’s more susceptible to future breakdown, and it’s it is, that in and of itself can and will be a permanent injury.

The big thing with wounds is obviously the concern for infection. The nursing home is supposed to keep those areas clean and dry, do dressing changes, and do incontinence care if the resident’s incontinent. And the whole goal is to keep that wound free from becoming infected because infections, particularly in older adults who are otherwise, a lot of them are immunocompromised, a lot of them aren’t malnourished and that can turn into sepsis.

What Is Osteomyelitis and Why Is It Dangerous?

Heimlich:

And sepsis can and does be fatal in many cases. Infection control, infection prevention, those are essential things and those are things that you’re always worried about when someone has a pressure ulcer. And some of the worst infections if the wound is deep enough, if you got a stage three or a stage four type pressure ulcer in particular, is that you’re worried about a bone infection.

The medical term is osteomyelitis, and in turn that, that can cause sepsis, that can get systemic that can lead to even a bone; they actually remove part of the bone sometimes if it becomes an infection. It can become very invasive, very painful and sometimes to correct the defect caused by the wound they’re gonna do…

First of all, they’re gonna do surgical debridement sometimes, which is literally scraping the dead tissue out of the wound with the idea of getting it clean so they can grow some new healthy skin tissue where the wound was. Sometimes they also have to do a flap surgery to close a wound that is unable to close on its own.

So that’s a plastic surgery type procedure where they take healthy skin from elsewhere on the body and cover the wound to A, insulate it from becoming recurrently infected, and B, promote that skin growth and skin healing. Depending on the nature and location of the wound sometimes if a wound is chronically or recurrently infected it can lead to amputation.

This is particularly prevalent in situations with ulcers or pressure ulcers on someone’s heels. They’re unable to be resolved or healed. They become recurrently infected. The concern is that the person may go septic and they decide that unfortunately, in some cases the best option is to have an amputation to protect the rest of the body and the resident’s health as much as they can.

It can be caused by and contribute to both malnutrition and weight loss. When the body’s trying to heal a wound it, it allocates a disproportionate amount of its resources to this open area to attempt to, to heal it as best it can, and that ends up depriving the rest of the body of the resources that it needs and, the person can become malnourished.

You can see weight loss. It also contributes to a more overall functional decline for those same type of reasons. The body’s using a lot of energy to try to heal the wound. The person’s going to not have as much to be mobile as they would have before, and it’s a vicious cycle.

Another thing we end up seeing with wounds particularly in the sacral area which is one of the most common areas for wounds to develop, on on the resident’s backside, is if they’re incontinent they need to be catheterized to keep, and that’s with the idea of keeping that wound clean, dry, and free from infection.

But that kind of creates its own set of complications, ’cause catheters often become recurrently infected. They can lead to lots of UTIs, which have their own set of problems. They can increase because delirium can cause infection, can cause sepsis on themselves. So it’s a catch-22 for the residents, in that, it all starts with these wounds.

So they can cause a whole host of problems for the resident, and even the treatments can be problematic in and of themselves. 

For clinical background on pressure injuries, staging, and associated complications, see NCBI StatPearls: Pressure Ulcers Overview. 

How Do You Convey the Pain of Pressure Injuries to a Jury?

Schenk: 

With respect to let’s isolate the pain from having an open hole in your body, okay? Is there any particular way that you convey that to the jury?

Sometimes it’s not self-evident. Sometimes you get jurors like, “I’ve gave birth.” You mean that’s, that size of a nickel hole in your body, that’s nothing. Like, how are you conveying the concept of pain to the jury? 

Heimlich: 

Yeah. Pressure ulcers especially depend on the severity and the location.

They can be viscerally very shocking. You and I have done, handled many cases involving pressure ulcers, and we’ve seen how bad they can get. The average person has no idea. And, you show a photo of a wound to someone on the jury panel and, a lot of, you get a lot of gasps.

You get a lot of people who didn’t know that this type of thing can happen to somebody if they haven’t had the experience of working in a healthcare facility or a nursing home, it’s not something that’s commonly known. So the photos if you have them, of the resident o- of the wound are something that you know, can be really powerful evidence and could really resonate with the jury.

I would caution that you don’t wanna overuse the photos especially if you have a lengthy trial. If you just have a blow-up of the photo and you leave it behind you while you’re putting on your case, the jury’s gonna see it every day. And it’s only human nature, they’re gonna become inoculated to the effect of it.

So what initially becomes, a gasping moment just becomes, “Oh, this is something that happens to people when they get older,” and obviously that’s not the case. How Often Should Pressure Injury Photos Be Used at Trial?

Schenk: 

So but to that end are you typically… is this something, if you have an image that’s, and it’s shocking, is this something that you show in opening, and then do you bring it back during maybe during your expert, examination or during closing?

Heimlich: 

Yeah. It’s actually the last pressure ulcer case I had, that’s exactly what we did. It was very brief during the opening, just kinda getting the jury’s attention. They’re just like, “Wow that’s something. That’s the, I see why we’re here now.” And you put it on with your expert because you want the expert to explain if these failures in care, they lead to this horrible outcome, and just a reminder of, of why we’re here.

And then, at closing you wanna, again, just very briefly, just to remind them, the full extent of how bad things got. But you certainly don’t wanna bring it up all the time. The defense may wanna bring it up, honestly, more than you do because after a while, you’ll start looking at this for days on end, and, it doesn’t seem…

it seems like something that it’s not. It seems like a part of the end of life process. And it certainly doesn’t have to be. And it certainly and I think even the most hardened defense experts would agree that most of these are avoidable. 

Additional evidence-based discussion of risk factors, prevention, and management of pressure injuries is available in NCBI StatPearls: Pressure Ulcer Pathophysiology and Management. 

Can Nursing Home Staff Help Prove Pain and Suffering?

Schenk: 

I think that Dawn Smith, Attorney Dawn Smith.

I can’t remember, I think she’s from Arizona. I probably got that wrong. But she talked about how at some point she would, in depositions, she would ask the DON or the nurses, “Have you ever seen a pressure injury? Have you ever seen a stage four pressure injury? How does the resident take it?”

And they’re like, “No it’s painful,” et cetera. Do you ever try to elicit The pain testimony, not from the family, but perhaps from the nursing home staff themselves. 

Heimlich: 

Absolutely, and that can be the best testimony if you give… and a lot of the people who work on the ground floor of these nursing homes are very, they’re hardworking.

They’re very empathetic. They get into, working at these facilities for the right reasons, and if you ask them honest questions in a fair way, a lot of times they will give you an honest answer that can be very powerful when presenting the case to a jury.

A lot of things you wanna go through with them, they include rules about the frequency and documentation of pain assessments. You wanna go through the pressure ulcer assessments and talk about, this is painful. Then you wanna talk about the like for dressing changes, a lot of times they give pain medication before the dressing change.

Why do you do that?” “Oh, it’s ’cause the dressing changes are painful.” Oh, that’s let’s talk about, we have a wound vac. What is a wound vac? How does it work? It’s a suctioning device that we place on someone’s location of someone’s wound on their heel or on their backside, and it’s designed to keep a clean, dry area and prevent the wound from becoming infected.

Does it, how does… It’s sucking, so it’s literally physically sucking on the resident’s back or heel all day? Yes. Is that something that can be painful? Oh, absolutely, it sure can. We often give pain medication for that. And you can go through that with the surgical debridements. Same thing.

They’re literally getting in there and cutting dead tissue out of a wound bed. It’s It, with knives and surgical instruments. It’s, even the enzymatic debriding agents, it’s oh, you’re putting this, really intense medicine in the wound bed that’s literally it’s cleaning out and it’s getting rid of all this dead tissue chemically.

Yes, that’s exactly what it does. So a lot of this stuff, if you just break it down and explain, have the staff explain what it is, how it works, even if they won’t explicitly talk about the pain, part with your particular resident, the jury’s gonna get it. Yeah. These are not these painful things.

It’s not just someone who has a wound and that’s it. It’s no, they have a wound, and even the treatments are painful. Yeah. Not just the wound in and of itself, the treatments are painful, too. 

For patient safety tools and structured prevention strategies used in healthcare settings, refer to AHRQ Pressure Injury Prevention Toolkit. 

Schenk: 

I guess you make it easily inferable. The pain is easily inferred from what you have elicited from the defense, and it’s a thing where the pain is unavoidable, too.

Heimlich: 

The resident, there are certain things that the residents have to do, and that the staff has to do for the residents, that are going to be painful. At some point, the resident’s gonna be, if they have a sacral wound, they’re gonna be on their back at some point.

They have to sit up to eat. If they’re trying to do therapy, they gotta sit up to try to do therapy. So they’re gonna be on their back, so they’re gonna be putting their body weight on an open wound. That’s painful. Incontinence care, that has to be done. That’s painful. Dressing changes, painful.

Getting transported, painful. It’s, it, and it’s unavoidable, so the staff has to do this stuff, and it all becomes part of this resident’s life. and, it’s just going from one painful activity to another and it’s, it’s, it can really it really adds up. 

For legal insight into when pressure ulcer cases may support a claim against a facility, refer to Can I Sue a Nursing Home for Pressure Ulcers?. 

Question of the Week

Schenk: 

We interrupt this interview to bring you the Nursing Home Regulation Question of the Week.

This week, folks, it is medium difficulty. If you get this right, and today is your going-to-the-gym day, then going to the gym means literally going to the gym, sitting in the parking lot, maybe listening to this podcast for a few minutes, and leaving. You went there. Nobody has to infer that you actually went in and did anything.

So going to the gym is literally just going to the gym, sitting in the parking lot, and leaving, if you want to, if you get it right

Under 42 CFR 483.25, bed rails used must be A, be only half or quarter size, B, be installed only on one side, or C, be installed as per manufacturer’s recommendations. And that answer is C. If you’re going to have bed rails in a nursing home under the federal regulations, then they must be installed as per manufacturer’s specs

Are There Any Issues With Pain and Suffering for Cognitively Impaired Residents?

Schenk:

Tell me about how you approach this concept. The, these, the, you’re building this evidentiary house. How does that work when you’re a resident, when your client is cognitively impaired or non-verbal? How do we know what they’re thinking? 

Heimlich: 

Yeah. And that’s one of the toughest and most tragic situations, and when you have someone with a significant amount of cognitive impairment who gets a wound.

They don’t necessarily experience pain. They just can’t express themselves in the way that you or I can verbally or otherwise. So it’s, honestly, it makes the whole thing worse. There are scales and methods to attempt to determine Whether or not someone who is has Alzheimer’s or some other form of dementia and may not be able to verbalize their pain to determine whether or not they are in fact experiencing pain there, there’s a scale that’s utilized or should be utilized in nursing homes called the PainAD Scales.

It’s literally a specialized assessment for residents with advanced dementia, and it looks at a number of things to determine whether or not the resident’s in pain. They look at the resident’s breathing patterns. Do they have labored breathing? Are they hyperventilating? How they look at the frequency and duration of that.

The other category is called negative vocalization. Basically, are they moaning or groaning? Are they calling out? Are they crying? All of those things are indicative that, yes, this resident is in fact, experiencing pain. Facial expressions. Are they smiling? Are they sad?

Are they grimacing? Are they frowning? All those things can indicate pain in a resident with dementia. Body language. Are they relaxed or are they tense? Are they fidgeting? Are they rigid? Are they pushing or pulling away or striking out? All of that can be evidence of pain.

For analysis of how damages in nursing home neglect and abuse cases are evaluated under Georgia law, see How Damages Are Calculated in Nursing Home Neglect Cases. 

And then whether or not, you’re able to console them. Are they distracted or reassured or are they inconsolable? So those can all be evidence of pain and then, if you take all that into account, you can paint a picture. Yes, although this resident can’t verbalize exactly what’s going on with them, they’re checking all these boxes that indicate that they’re experiencing pain and, e- especially if the pressure injury, the pressure ulcer tends to be the most likely source of that pain, that, that’s a connection that, your experts can draw, that your family can draw and that you can, relate to the jury.

How Do You Address Jurors Who Think Pain Is Just Part of Aging?

Schenk: 

Any pushback from the nursing home or maybe even potential jurors that you would need to understand in voir dire about anybody that’s made it to 85 years and older, life is pain. You’re waking up with pain, what’s the difference, right? Do you ever have to, do you ever have to deal with that at the beginning, like in voir dire? Do you address this issue? 

Heimlich: 

Oh, you have to. You have to. You gotta get, you gotta get an understanding of who out there, just gonna take a look at your case and say, “This is just this is natural. This is the aging process. This is what happens when you reach a certain age.”

And those people are out there. It’s tough. A lot of people are very tough. Someone, we’ve had cases where someone experiences a, or someone experiences a loss of a parent at a young age, and, you have a resident who’s 85, and they go to my mom only, she died at 60.”

“They should be thankful for the 25 years they got that I didn’t.” So you gotta sort that all out in openings in voir dire as much as you can if you’re, especially if you, if your courts will allow for it. And, try to get them to state, affirmatively, that, yeah, I don’t think I could…

Even if I hear testimony that the wound was avoidable even if I hear testimony that the pain and suffering they experienced was unnecessary, I don’t believe that personally, and therefore I can’t imagine myself finding it on behalf of your client, and that’s something that if you’re able to.

I know the rules for voir dire and jury selection are, vary wildly jurisdiction to jurisdiction, but in Illinois, where I practice we are usually, not always, but especially in state court usually given a pretty decent amount of leeway to ask those kinds of questions, and figure out where people’s heads are at before the case even begins to see if they’d be, come in with a bias that can’t be overcome.

Can a Pressure Injury Case Still Succeed If the Wound Heals?

Schenk: 

So I guess it is the case then that it wouldn’t be a case if it heals? 

Heimlich: 

I actually had a case. It was relatively recent. I think we resolved it about a year ago, and involved a… She was a, it was supposed to be a short-term nursing home patient, and, she had an acute illness, ended up in the hospital, was transferred to the nursing home, and developed an inexplicably large and horrible stage four bedsore that got recurrently infected over the next, I would say, four to six months.

But then she went home, and through a lot of family help and home health aides and going to an outpatient wound clinic the wound basically healed entirely, and she was relatively fine going forward. And that was I managed to get a very substantial result for her because a lot of the times with wounds in particular, the defense is usually a medical unavoidable-type defense.

Oh, this person was acutely ill. They were the end of life. They were, they were sick. They were dying. Whatever the situation is, they’re going to point and say this was clinically unavoidable, and they had none of those defenses here because she was not particularly old. She was not at the end of life by any means.

She was in fact very, when we did her deposition, she was very upbeat and chipper very with it very cognitively intact. So that helped on several levels. First of all, the wound healed. You can’t say it’s unavoidable when it’s healed. Second of all, she was very cognitively aware of what was going on with her.

It was all very painful, very traumatic. And, she also had a wonderful family, all of that helped, who were very involved. And all of that kind of created a circumstance where the defense, eventually, I guess through settlement we’ll call it, acknowledged the extent of the harm that was caused and paid a substantial amount even though the wound was totally healed and she was more or less as she was before all this occurred by the time the settlement came through.

I understand where you’re coming from and most of that, that’s mostly how I feel about the cases. But I do really like when wounds heal, especially if after they get really bad because they really can’t, there’s no way a jury in my opinion would believe that they’re unavoidable when they’re actually healed.

An overview of case valuation and factors affecting compensation in bed sore cases is available in How Much Is a Bedsore Case Worth?. 

Schenk: 

Matthew, really appreciate you coming on the show and sharing your knowledge with us today. 

Heimlich: 

I appreciate it. Thanks for having me back on. Happy to talk with you anytime on or offline about this stuff. 

Schenk: 

Awesome. Folks, I hope that you found this conversation with Matthew educational. If you enjoy the Justice for Residents podcast, then I highly recommend and not recommend, I would love it…

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