Legal Review & Commentary

Temp worker’s mistake costs a life and $800,000

News: Unable to care for herself, a Parkinson’s disease patient contracted for services provided in her home, including meal preparation. One day, the home health company was short-staffed and subcontracted with a temporary personnel agency to care for the patient. The temporary employee served the woman a meal that violated her dietary restrictions, and the patient choked to death. The patient’s estate brought suit, and the jury returned a verdict of $800,000 against the home health provider; the estate settled confidentially with the temporary personnel agency.

Background: The decedent in this case suffered from Parkinson’s disease and was unable to fully care for herself. With no family to assist with her care, she contracted with a home health services company. Parkinson’s disease caused her difficulty in swallowing, leading the home health services company to prepare her meals according to specific feeding and dietary restrictions.

One day, the home health care provider was short-staffed and subcontracted with a temporary personnel agency to provide care to the plaintiff. The temporary employee assigned to care for her did not know she had difficulty swallowing and was unaware of her dietary restrictions. The temp, at the patient’s request, served the woman menudo, a hearty and spicy Mexican soup made with tripe, calf’s feet, chile peppers, hominy, and seasonings. In the middle of her meal, the woman choked to death.

The decedent had no surviving spouse or children, but her estate brought forth an estate claim against the home health provider and the temp agency, claiming negligent hiring, negligent supervision, and improper care. The plaintiff’s position was that the meal should never have been served, that the home health provider failed to provide the temp with adequate information regarding the patient’s condition and special needs, and that the home health provider’s overall care was severely lacking.

The home health care provider raised a variety of defenses. It claimed that it provided only personal assistance services, not true home health services. It also maintained that the decedent demanded menudo, which was served properly, and that the patient’s death resulted from a natural condition, not from the food intake. Lastly, the home health company claimed that, if there was negligence, it was the subcontractor that was the negligent and culpable party. The temporary personnel agency failed to make an appearance in court.

The jury returned a verdict for the plaintiff in the amount of $800,000 against the home health company. The case against the temp agency was later settled for an undisclosed sum.

What this means to you: This client contracted with the home health agency for certain services and the agency had a responsibility to obtain and maintain particular information about the client. In the event the home health agency, or any organization, subcontracts with another organization to provide care or services in its stead, the contracting organization has a responsibility to pass on any and all information to the contracted party. In such cases, the contracting party, in this situation the home health agency, still retains the responsibility for the client, says Leilani Kicklighter, RN, ARM, MBA, CPHRM, CHt, director, risk management services, of the Miami Jewish Home and Hos-pital for the Aged.

Even if this client contracted only for activities of daily living and meal services, the home health agency still should have provided supervisory oversight, especially when the assigned personnel is unfamiliar with a client’s needs. Specifically, it was known that this client had difficulty swallowing as a result of Parkinson’s disease.

"Special care of diet and feeding is very important when caring for anyone with swallowing difficulties. Serving thickened liquids and complying with other dietary requirements are necessary. This information should have been made available to the temporary staffing agency, which would then have had a responsibility to pass it on the temporary personnel assigned to this client. The temporary staffing agency should have taken this need into consideration when selecting and assigning the personal assistant to this client. Furthermore, the home health agency had a responsibility to outline certain qualifications and responsibilities required of the person assigned," adds Kicklighter.

In this matter, we do not know if the client was capable of understanding the swallowing dangers in certain foods when she demanded a particular meal be prepared.

"The home health agency should have advised the temp agency companion to call for clarification of issues that might arise, such as the client’s insistence for a certain meal that proved to be inappropriate. It may have been that the patient client realized that this was not a regular employee and therefore the patient knew that she could try to break the rules, but should not have been allowed to do so," notes Kicklighter. "In view of the fact that the client was known to have a swallowing problem, the home health agency should have made sure there was a suction machine available in the client’s home and that any and all staff members who took care of this client were trained in using the suction machine and in the Heimlich maneuver in the event of choking."

Swallowing difficulties are complications in many diseases and conditions and are a recognized potential problem in the elderly, especially those with Parkinson’s disease. Health care providers must be aware of these dangers of choking, learn methods to minimize them, and be prepared to intervene when choking occurs, regardless of the setting.

"Risk managers should review the process and content of the communication between the admissions intake personnel and the caregiving staff in the field. Systems should be set up to accomplish this same process in the event temporary staff is utilized. Many organizations develop working relationships with temporary staffing agencies. Risk managers should work with administration to decide whether it would be in the organization’s best interest to contract with the temp agency. Such a contract might set out the responsibilities for each party that could address some of the issues described in this scenario," concludes Kicklighter.


• Bexar County (TX) District Court, Case No. 98-PC-1630.