Pam: This is Fighting for What’s Right with personal injury attorney, Barry Doyle.
Barry, one of the types of cases that I know you’ve handled involves choking, where the nursing home resident actually chokes to death.
How in the world does this happen?
Barry Doyle: When you admit a parent to a nursing home, you know their health isn’t great, but you justifiably look to the nursing home to keep your parent safe, and if they’re choking to death, that’s clearly something that’s not happening. There are two basic issues in choking cases.
One involves chewing, actually grinding the food up in your mouth, and the swallow, which is your ability to move the food down your throat into your digestive tract, and most often, what you find is that the people who are involved in these choking cases, the nursing home residents, have a problem with either chewing or swallowing, one or the other, possibly both. Both of these parts, the chewing and the swallowing, is something that should be evaluated by a speech therapist.
Now, a speech therapist, typically, is an independent contractor who’s going to be brought in by the nursing home to evaluate these kind of issues, among other things. And, because they’re an independent contractor, their role in the underlying incident is something that really has to be carefully evaluated from my perspective to determine whether, or not, the speech therapist and the company that they work for should be brought into the case as a defendant. Besides the role of the speech therapist, most often what you really see is a shortcoming in the care planning process.
Pam: What do you mean by that?
Barry Doyle: So the whole point of the care planning process is to identify the risks to the health and well being of the resident and, if a resident has difficulties with either chewing or swallowing, they’re at risk for choking and that’s something that should be addressed very specifically in the care plan.
Now, if somebody is at risk for choking because they have difficulties with chewing or swallowing or for whatever reason, then you really need to have a specific set of measures put into place to address those risks. In the cases that I’ve taken on, that part of the care planning process hasn’t happened. There hasn’t been a specific care plan that’s been put into place to address those risks.
Give you an example. I was representing the estate of a lady who had been admitted to a nursing home for rehabilitation after she was involved in a house fire, and she was on a pureed diet for a long time to help her with making sure that she was getting enough to eat. She was just having difficulty finishing a full meal on a general diet. As she got stronger, she asked the staff, “I’d like to get real food.” That was the quote that was in the chart, and so the nurse called the doctor and the doctor said, “It’s okay with me if it’s okay with speech therapy.” Which should have been a sign to have a formal assessment done.
The speech therapist came into the nursing home and the nurse asked the speech therapist if it would be okay to give this resident regular food and he said, “Sure.” Eight days later, she’s was being served a chili dog and she ended up choking to death. When the paramedics arrived, they pulled a three and a half inch piece of hot dog out of her wind pipe and, when we did the deposition of the speech therapist, one of the things I asked is, “Where you aware of her having any difficulties with her eating?” And he said, “Well, she had difficulty identifying things in multi-textured food.” Which is exactly what a chili dog would be. You’d have three different consistencies with the bread, the chili, and the hot dog itself and, for whatever reason, she managed to swallow a really out size piece of hot dog without having chewed it up and it got lodged in her wind pipe, and unfortunately, she passed away from that.
I handled another case where another lady was assessed by the speech therapist and a formal set of recommendations were made by the speech therapist for things that had to be done because she had some difficulties with her swallow function, and the recommendations that the speech therapist made were things that were never, ever incorporated into her care plan. In fact, she wasn’t reassessed by the speech therapist for over a year and a half despite the fact that she had multiple sclerosis, which is, by its nature, is, sort of, a progressive disease which gets worse over time and not better.
And what happened to this lady was that, she was being fed in a manner that certainly wasn’t consistent with the speech therapist recommendations and certainly nothing that took into account the progression of her disease over time, and she choked to death while she was being fed by a CNA.
In all of these cases I’ve handled involving choking incidents, there really hasn’t been a formal care plan that’s been put into place to address the very specific risks that these residents had of choking.
Pam: That’s really sad. You’re watching, Fighting for What’s Right, with personal injury attorney, Barry Doyle. Please visit us on Facebook at, Fighting for What’s Right.