Bedsores and 'Never Events': What Dayton Patients Must Prove in a Hospital-Negligence Case

Published January 30, 2020 · Ohio Appeals Courts

A family member goes into the hospital for surgery and comes home weeks later with a wound on the lower back that goes down to the bone. Families who have seen a stage 4 pressure ulcer do not forget it, and many of them ask me the same question: if the government calls this something that should never happen in a hospital, isn't that proof the hospital was negligent?

On January 17, 2020, the Second District Court of Appeals, which hears appeals from Montgomery County, answered that question in a case against Miami Valley Hospital. The answer is not the one many families expect, but it is far from the end of the road for patients hurt by preventable bedsores.

What happened to David Stuck

According to the court's opinion in Stuck v. Miami Valley Hosp., 2020-Ohio-129, David Stuck had surgery at Miami Valley Hospital in January 2013 for a recurrence of kidney cancer. While he recovered in the hospital, he developed at least one pressure ulcer on his buttocks and tailbone area, which he alleged grew worse during his stay. He was discharged in mid-February. Eight days later he was back in the emergency room with sepsis and stage 4 decubitus ulcers, the most severe kind. He alleged severe, permanent injuries and years of treatment.

Mr. Stuck sued the hospital, its operator, and several of the physicians and providers involved. Along with an ordinary medical-negligence claim, he asked the court for a declaration about "never events."

What "never events" and "hospital-acquired conditions" are

The terms come from federal Medicare policy, not from Ohio malpractice law. As the court explained, a federal statute enacted in 2008 reduces Medicare payments to hospitals for certain "hospital-acquired conditions," and the list includes stage III and IV pressure ulcers and objects left inside the body after surgery. The idea, in the court's words, was to "incentivize hospitals to reduce the incidence of such conditions." The phrase "never event" comes from proposed federal guidelines and, as one Ohio trial court put it, describes results that "should never occur" in a hospital.

Mr. Stuck argued that when one of these events happens, the law should presume negligence. He asked the court to declare that a never event is negligence per se (automatic negligence because a legal rule was broken), or triggers strict liability (liability regardless of fault), or at least allows res ipsa loquitur, a doctrine that lets a jury infer negligence from the nature of an accident.

What the court decided

The Second District affirmed the trial court and rejected all three theories. The court held that the federal rules were written to set Medicare payment policy, and nothing in them shows an intent to create a new standard of care for private malpractice lawsuits. It noted that it was not aware of any court, in Ohio or elsewhere, holding that a never event by itself proves the standard of care, the breach, or causation. The court also noted that Ohio statutes effective in March 2019, including R.C. 2317.45, say federal Medicare and Medicaid rules are not to be used to set the standard of care in a medical claim, though it did not need to decide how those statutes applied to a 2013 injury.

So the elements did not change. A patient suing a hospital or doctor in Ohio still has to prove what a reasonably careful provider would have done, that the defendant fell short, and that the shortfall caused the harm, and each of those elements is established through expert testimony. I wrote about how Ohio juries are instructed on those elements in a 2015 post on Cromer v. Akron Children's Hospital, a Supreme Court of Ohio decision the Stuck court relied on.

Two points in the opinion matter a great deal for families:

• Only the shortcut was rejected. The ruling addressed a request for a declaration that the hospital was liable without proof of breach or causation. Mr. Stuck's ordinary medical-negligence claim was not decided by this appeal.
• The court left trial evidence open. The court said plainly that whether evidence about never events, or the hospital's own policies on them, can be used at trial was not before it. The decision does not say that evidence is out.

Why bedsore cases are still very much provable

This decision does not mean pressure ulcers are an unavoidable part of hospital care, and it does not mean a family has no case. It means the case has to be built the traditional way, with medical facts and qualified experts, rather than with a federal label.

That is how strong pressure-ulcer cases have always been won. The proof is usually in the chart:

• Risk assessments. Hospitals screen patients for pressure-injury risk on admission and during the stay. A patient recovering from major surgery, immobile and on pain medication, is often high risk. What did the assessment say, and what did the hospital do about it?
• Turning and repositioning. Nursing notes and flowsheets should show how often the patient was moved. Gaps of many hours tell a story.
• Skin checks and wound documentation. When was the redness first noted? Was the wound measured, staged, and photographed? Did it get worse while the care plan stayed the same?
• Support surfaces and nutrition. Was a pressure-relieving mattress ordered? Was nutrition addressed?
• Communication. Did nurses notify the physician and wound team promptly, and were their orders followed?

A nursing expert and a physician expert review those records against the standard of care and explain to a jury, in plain terms, what should have happened and why the wound developed. When the chart shows a high-risk patient who was not turned, checked, or treated until the damage was severe, the facts carry the case.

These are the same proof problems families face in nursing homes, which I discussed in last November's post on nursing-home falls and understaffing. Staffing, charting, and follow-through are usually where the answers are.

The deadlines are short

Medical claims in Ohio move on a much faster clock than car-crash cases. Under R.C. 2305.113, a medical claim generally must be filed within one year after it accrues. A written notice to the provider before that year runs can extend the time by 180 days, and there is a four-year outer limit for most claims, measured from the act or omission, regardless of when the harm was discovered. A family that waits to "see how things go" can lose the claim entirely while a wound is still healing.

What this means for you

• If a loved one developed a serious bedsore in a hospital or care facility, photograph the wound with dates, and write down what you saw: how often staff came in, whether the patient was turned, what you were told.
• Request the complete chart, including nursing flowsheets, wound-care notes, and risk assessments, not just the discharge summary. Our guide chapter on preserving documents and records explains how.
• Do not assume the case is hopeless because a federal rule will not do the work for you. Expert review of the records is how these cases are proven.
• Do not wait. The one-year medical deadline is one of the shortest in Ohio law; our guide explains why talking to a lawyer early matters most in cases like this.

You can read more about the kinds of serious-injury cases we handle on our personal injury page.