Here’s a message from my good friend and colleague, nurse practitioner Joy Schank. Joy has donated her time as an expert in criminal court proceedings dealing with the development of skin breakdown at the end of life. Family members and clinicians have been charged with crimes when loved ones develop skin changes as part of the dying process. Some have gone to prison. Although we know that elder abuse and neglect can occur, the criminalization of skin changes at the end of life is a terrifying trend. If you as a healthcare provider are charged with a CRIME in relation to the formation of a pressure injury or end of life skin breakdown, your malpractice insurance will not help you. You will be responsible for the total cost of your defense and even if you are found “not guilty,” your reputation and practice will probably be destroyed. Joyce suggests that terms like “Kennedy Terminal Ulcer,” can be helpful in distinguishing end of life skin breakdown, particularly to non-medical people.
Law and Disorder – Going to Jail for Kennedy Terminal Ulcers
Joy E. Schank, RN, MSN, ANP, CWCN
Dr. Fife, your recent articles in Today’s Wound Clinic are inspirational to those trying to defend clinicians, healthcare organizations and now lay people against unjust civil and criminal charges. A Closer Look at the Legal Implications of Pressure Injuries and What My Experiences Have Taught Me About Meritless Malpractice Cases. Those in healthcare are familiar with civil (“malpractice”) lawsuits but now criminal charges are increasing in this country, especially involving skin breakdown in terminally ill patients. This trend has been increasing for more than a decade as identified by Campbell and Fullerton1 in 2010. The authors noted a trend in which family members were being criminally charged for taking care of loved ones in the home setting, particularly those with dementia. They cited a Florida homicide trial, State of Florida v. Fenn which involved a couple taking care of the wife’s 89-year-old mother who was in the final stages of dementia. She did not have any skin breakdown until the last days of her life. The state asserted that she died from starvation and dehydration. The couple were imprisoned approximately 3 years. In their article, Campbell and Fullerton mentioned that “Kennedy Terminal Ulcers,” which occur at the end-of-life and signal death, were being mistaken for elder abuse/neglect.
Recent Criminal Cases Concerning Kennedy Terminal Ulcers
The following 2 cases exemplify the criminalizing of end of life skin breakdown. In State of Wisconsin v. Kristine M. Mayle, the patient’s niece was imprisoned for 3 years. She faced a potential 23-year sentence for caring for her demented aunt for 8 years who expired with a Kennedy Terminal Ulcer. When her aunt died, she called 911 and the responders noted the skin breakdown. Months later Kristine was charged with elder abuse/neglect.
Commonwealth of Virginia v. Erick Wilson, involved a nephew caring for his demented aunt. She was initially in a nursing home, but when she escaped and was found wandering along the road, he decided to care for her at home. Approximately 8 months prior to her death, the physician stated she was a hospice candidate. The nephew wanted to keep her same physician, so he did not opt for hospice. Her condition worsened and she developed a Kennedy Terminal Ulcer. The nephew took her to a hospital where the clinicians notified Adult Protective Services, which was appropriate because of the skin breakdown and overall condition of the aunt. Unfortunately, the aunt’s physician was not interviewed and the nephew and friend were charged with elder abuse/neglect and were not allowed to see the aunt prior to her death, approximately 6 weeks later. The friend lost her job because of the criminal charges and owed at least $9,000 in legal fees. The nephew faced up to 10 years in prison, if convicted, but was found innocent of the charges. The family friend who helped with the aunt’s care, also faced a 10-year prison sentence (Commonwealth of Virginia v. Gigi Garner). She was offered a plea deal but did not take it, as she knew they were both innocent. The nephew’s trial occurred first and a few days later, a trial was held for the friend, who also was found not guilty.
These cases are examples of the trend to criminally charge individuals for end of life skin breakdown. Terms like Kennedy Terminal Ulcer (KTU), Skin Changes at Life’s End (SCALE) and the Trombley-Brennan Terminal Tissue Injury (TB-TTI) help to explain to families, attorneys, juries and other non-clinical people what may happen to the skin of individuals who are in the final stages of life. However, there is a push to eliminate these terms and use only the term “skin failure,” the argument being that having several terms is confusing. Langemo and Brown’s2 definition of skin failure is, “an event in which the skin and underlying tissue die due to hypoperfusion that occurs concurrent with severe dysfunction or failure of other organ systems.” They further categorized skin failure as acute, chronic, and end-stage. Thus, the terms KTU, SCALE and TB-TTI could be viewed as subcategories of end-stage skin failure.
Importantly, the term Kennedy Terminal Ulcer is recognized by the Centers for Medicare and Medicaid Services (CMS). Removing it will decrease the data available to better monitor these events. We need more data to understand the development of skin breakdown at the end of life. Data are also needed to assist the legal teams defending clinicians and family members wrongly accused of elder abuse or neglect for skin changes at the end of life. Terms like Kennedy Terminal Ulcer can also help clinicians, patients, loved ones, caregivers and judges understand what changes may be expected as a patient nears death. The energy being expended over terminology arguments should instead be focused on ensuring that family members and clinicians are not wrongfully imprisoned for skin changes that are part of the dying process. There’s a term for what is happening in criminal courts with regard to end of life skin changes – it’s called “wrong.”
- Campbell F, Fullerton J. Cover Story: The Criminalization of End-of-Life Care and the emergence of “Clinical Forensic Medicine.” National Association of Criminal Defense | Lawyers, Inc. Available at: https://www.experts.com/content/articles/john-fullerton-md-author-the-criminalization-of-end-of-life-care.pdf (Accessed October 11,2020)
- Langemo DK, Brown G. Skin fails too: acute, chronic, and end-stage skin failure. Adv Skin Wound Care. 2006;19(4):206-211.