Arbitration & Mediation

Boca Raton Nursing Home Wins Stage III Ulcer Arbitration

By Christopher B. Hopkins, Esq.

A Palm Beach County skilled nursing facility won an arbitrated dispute over whether it violated a Resident's Nursing Home Rights when the Resident, admitted with vascular problems and multiple reddened areas, developed bilateral Stage III decubitus ulcers. The arbitrator found that, based upon the medical evidence, there was no liability, causation or damages.

The case was originally pending before the Honorable Diana Lewis who, after a hearing on the Motion to Compel Arbitration, entered an order sending the parties to arbitration. The Resident had signed the admission agreement which contained a fairly standard arbitration clause (we will do a later post with the hearing transcript since the arguments at the hearing were deemed by the court to be "interesting").

In Florence Dorman as Personal Representative of Jesse Dorman v. Regent's Park, Inc., the plaintiff claimed that the Resident received substandard care because his red heels turned into Stage III pressure ulcers. Medically, the case hinged on (1) whether or not the Resident had vascular problems; (2) whether the sacral wound had healed; and (3) whether the photographs of the sacral wound post-discharge where taken immediately or days later.

Experts disagreed as to whether the Pulse Volume Recording test was more or less reliable than doppler. Based upon the medical testimony, the arbitrator found that the Pulse Volume recorded the presence and quantity of blood flow. Thus, the arbitrator "concludes that [the Resident's] circulation was severely impared and not mildly impaired." This was a critical issue for the defendants, since the underlying cause of the ulcers was the basis for their defense. Specifically, the facility needed an explanation as to how the wounds could worsen WITHOUT there a finding of substandard care.

Due to a lack of charting, it was unclear whether the sacral wound was resolved by the time of discharge. Both sides argued that the continued application of zinc oxide had different implications (plaintiff claiming it was necessary because there was a wound while the defendant claimed it was preventative at that point). The facility had not documented turning and positioning nor was there a discharge skin assessment. Moreover, the Resident was sent home and did not get a home health assessment for days. The arbitrator found that the greater weight of evidence showed that the sacrum was clear. This too was an essential part of the Defendant's case -- if turning was done to prevent the sacral skin breakdown, then the heels too must have been offloaded. Hence, with a medical explanation for the heel breakdown (vascular disease) and the greater weight showing that turning had been done, the Facility's defense was a success.

Also of importance was the determination of when the post-discharge photograph of the sacral wound -- as a Stage III -- was taken. Recall, the greater weight of the evidence was that, upon discharge, the sacrum was clear. But the Plaintiff entered a photograph, which could not be dated, showing a Stage III. The Plaintiff's expert also relied upon that photograph for her opinion that the wound worsened at the facility. Ultimately, using testimony and documents, the arbitrator found that the sacral photo was at least nine days post-discharge and was not indicative of the sacrum upon discharge.

Full disclosure: Christopher Hopkins and Allison Miller, of this site, represented the Defendant.

Full post as published by Florida Arbitration Law on February 13, 2008 (boomark / email).