1. Salcido, Richard "Sal" MD

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Litigation and resultant compensation associated with pressure ulcers (PrUs), as a matter of precedent, have been confined to compensatory (alleged malpractice, pain, suffering, loss of function, and loss of consortium) paying monetarily to compensate for actual damages incurred by the plaintiff. In these cases, the plaintiff usually is the patient's caregivers.

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A survey of recent cases demonstrates that most PrU judgments are classified as compensatory damages except in unusual circumstances. However, a recent disturbing trend is manifest-punitive damages on top of compensatory damages, with significant monetary payments for PrU-related catastrophic events. To reach the threshold for punitive damages, there should be significant evidence supporting a claim. Criteria may include such offenses as outrageous and reckless conduct, wanton disregard for the duty to care for the patient, failure to inform, failure to diagnose, and failure to treat PrUs. There exists significant taxonomy of legal discourse, a palette of words if you will, to describe the behavior associated with conduct that merits punitive damages. This can include scores of adjectives, such as egregious, conspicuously bad or offensive, flagrant wanton disregard for the standards of practice, or a breach of duty and insidious behavior related to patient care. My interpretation is that the application of punitive level of damages sends a clear message from the court to those who may believe that all PrUs are avoidable, thus putting wound care practitioners and facilities at more risk for untoward outcomes from human and systems-based errors. This emerging reality brings to the forefront our significant knowledge gaps related to the question of "avoidable versus unavoidable" PrUs.


In the United States, there is no maximum dollar amount of punitive damages that a defendant can be ordered to pay. Instead, appellate courts often look at the ratio of punitive damages to compensatory damages. Only in rare cases is a punitive damages award of more than 4 times the compensatory damages justifiable. Also, punitive damages are usually reserved for when the defendant has displayed actual intent to cause harm.


Recently, a punitive damages award in a PrU case (bedsores was the term used) in Philadelphia, Pennsylvania, went deep into the pockets of a university and a nationally owned nursing home, resulting in $5 million in punitive damages on top of $1 million in compensatory damages. They alleged that the care the patient received or failed to receive was causal in the development of "ultimately fatal bedsores" while at collaborating inpatient facilities and subsequently during 2 years of home care, according to the Philadelphia Inquirer. The published article indicated that this was the first case of punitive damages related to PrUs in the Philadelphia Common Pleas Court.


The article reported that the 74-year-old patient was admitted to the hospital on May 21, 2006, after suffering weakness and confusion as result of a possible stroke. According to Steven R. Maher (reported as the patient's attorney), physicians at the hospital failed to properly diagnose that the patient was having a urinary tract infection that, as a result, worsened and left him susceptible to the bedsores that ultimately led to his death. After about a week at the hospital, the patient was transferred to a skilled nursing facility, where he stayed 2 weeks until his condition worsened, and he was returned to acute care. He was released to go home after 3 days. Maher contended that workers at both the hospital and the skilled nursing facility allowed the bedsores to fester. The patient also became malnourished to the point that he lost 28 lb. After he returned home, he was cared for by his wife, before dying of the bedsores 2 years later.


In a similar case, a skilled nursing facility in Brooklyn, New York, that allegedly neglected a 76-year-old man and caused him to develop more than 20 bedsores, was required to pay nearly $19 million to the victim's family. The 76-year-old patient lost nearly 100 lb and had a serious infection as a result of his bedsores after 6 months of staying at the Brooklyn facility. It also was discovered that the skilled nursing facility had "doctored" records to cover up their neglect. As a result, the jury awarded $3.5 million for pain and suffering and $15 million in punitive damages for the doctored records.


These recent putative cases are demonstrative of a disturbing trend. The precedent of punitive damages on top of compensatory payments for avoidable and unavoidable PrUs should initiate a sense of urgency in the field, for us to close our knowledge gaps in this regard. Now, and in the future, post hoc revisionists will link an array of events to the resultant PrU and subsequent untoward outcomes and even death of patients we are trying to serve. One other common issue illustrated by the second case is the unfortunate attempt at deconstructing the medical record through the use of unauthorized addenda. The take-home admonition is, if you did not do it, don't put it in the medical record, and if it is not in the medical record, you did not do it. The transition to electronic medical records with its inherent "date-time stamp" will be the standard of documentation. In my fantasy, I see a world where a portion of any punitive damages related to PrUs gets pumped back into research and education to "mind the gaps" in our knowledge base.


"It is as expedient that a wicked man be punished as that a sick man be cured by a physician; for all chastisement is a kind of medicine." -Plato


Richard "Sal" Salcido, MD

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Selected References


Ginsberg A. Senior-home hell. Brooklyn facility hit for $19 million in neglect suit. New York Post. Posted December 28, 2009. Last accessed March 26, 2010.


Hepp CK. Unusual damages set in Philadelphia bedsores case. Philadelphia Inquirer. Posted on March 18, 2010. Last accessed March 26, 2010.