Type of Action: Wrongful Death
Name of Case: Withheld
Court/Case#: Norfolk County Superior Court/Withheld
Tried Before Judge or Jury: N/A-Settled
Counsel for the Plaintiff: Dino M. Colucci
Colucci, Colucci, Marcus & Flavin, P.C.,
The plaintiff, who suffered from severe dementia, was a resident at the defendant's facility. It is uncontested that the plaintiff relied entirely on the defendants for even the most basic activities of daily living. At the time of the facts that give rise to this case, it was generally accepted that the plaintiff's health was in a period of drastic decline.
Upon her admission to the defendant's facility, the plaintiff underwent an evaluation which identified that she was at increased risk for choking. Because of her particular compromised condition, (frontal temporal dementia and Pick's Disease), choking is a generally recognized hazard.
On or about March 20, 2006, the plaintiff was being fed by an aide employed by the defendant. Coincidentally, the plaintiff's daughter was also present. The daughter noticed that the aide was not providing feeding "cues" for the patient such as "slow down" [eating] "finish the food that is in your mouth before taking another bite" and the like. The daughter tried to remind the aide that cueing was necessary, but her efforts in this regard were largely ignored. Similarly, the daughter expressed her concern that the aide was not sufficiently monitoring the patient's consumption of food. The aide, in the daughter's opinion, was providing too much food with each forkful and was not ensuring that all of the food was actually swallowed before providing another bite.
Unfortunately, the daughter's apprehensions soon became realized: the plaintiff began to choke and initial efforts to clear her airway proved unsuccessful. Emergency Medical Technicians who were summoned initially restored the plaintiff's breathing but she expired hours later nonetheless. It is uncontested that a large bolus was ultimately recovered from the decedent's airway and that her cause of death was determined to be proximately caused by asphyxiation. When scrutinized, the bolus contained, among other things, broccoli stems and remnants of a bread roll-items that presumably should not have been included in the patient's diet due to her heightened risk of choking.
The plaintiff's expert was prepared to testify that the defendant was well aware of the plaintiff's asphyxiation risks. Medical records confirm that she was noted to be impulsive and grabbing food during an exam and had a history of choking with pills and "pocketing" (meaning clustering foods in the back of her month). Furthermore, the defendant knew that their patient was on a ground diet, regular liquid, super mashed, super cereal regime. The plaintiff had a well documented plan of care for strict adherence to aspiration precautions from New England Sinai Adult Day Care and Old Colony Hospice where she was previously noted to gorge and pocket food.
The plaintiff's expert opined that the standard of care for a patient with dysphagia is to monitor the swallowing of the patient and making sure that food is clearing the patient's throat before giving more food or liquid. In this case, the plaintiff's expert concluded, the patient's care fell below the standard of care since the aide was not (1) taking reasonable steps to "cue" the patient to eat slowly; (2) providing the patient with small bites of food; (3) checking to ensure that the patient was not "pocketing" food; and, (4) ensuring that the patient was clearing her throat before swallowing the food. The combination of all of these lapses thus facilitated a bolus of food that caused the patient to suffer aspiration and blockage of airway resulting in her death.
The case settled at mediation in the amount of $175,000.