Legal Review & Commenatary

Unsupervised nursing home resident with dementia and dysphagia chokes to death — $926,000 settlement

By Jon T. Gatto, Esq., Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney, Tampa, FL

News: A nursing home resident with a history of difficulty in swallowing choked to death while eating a piece of brisket. Although staff attempted to perform the Heimlich maneuver and CPR on her, the woman died. The woman's family sued the nursing home and alleged failures in the type of food served to the woman, the manner in which it was served, the lack of supervision given to the patient while she ate, and the type of resuscitating procedures performed after the Heimlich maneuver was unsuccessful. The plaintiffs also sued two of the nursing home's board members under the theory that they could be held liable for a failure to adequately staff a nursing home. Before trial, the parties settled for $926,000.

Background: A 65-year-old retired nurse with a documented history of dementia, stroke, and difficulty in swallowing lived at a nursing home that specialized in providing care for Alzheimer's patients and for the general elderly patient population. The woman, who lived on a hall for dependent residents with decreased mental capacity, was taking the prescription drug risperidone, which is an antipsychotic medication that interferes with the communication among nerves in the brain and, as a result, can decrease the amount of saliva able to be generated by the patient. One day, while eating a meal consisting of brisket with rolls and vegetables, the woman choked on a piece of the brisket that was 4 inches by 6 inches. The staff attempted to perform the Heimlich maneuver on her, and when that failed, they placed her in a wheelchair, put her in bed, administered oxygen, and attempted CPR. The woman's extended inability to breathe led to cardiopulmonary arrest with severe anoxic brain injury, resulting in death.

The woman's family, who visited her often and had even brought her home for short periods of time, sued the nursing home. They alleged that their decedent should have been served a mechanical soft diet and that the meat should have been cut into small pieces. The plaintiffs also claimed that the facility should have supervised the woman while she ate and that it was on notice of the woman's dysphagia because of a prior choking incident at the nursing home. In fact, the plaintiffs maintained that the defendant should have seated the woman at a "feeder" table, where she would not receive a meal tray until a staff member was there to assist her. And finally, the plaintiffs alleged that the staff failed to provide proper care after its attempt at the Heimlich maneuver. The plaintiffs argued that the staff should have performed abdominal thrusts, back blows, and sweeps of the mouth with attempts to rescue breath, and that the CPR would have been more effective if the woman had been lying on a hard surface rather than in bed.

The plaintiff's speech pathologist expert testified during deposition about the physical pain and mental anguish suffered by the decedent while choking. She noted how horrific and frightening choking is while the individual attempts to breathe but is unable to, and then how the individual suffers extreme pain and suffering when she asphyxiates due to her airway being obstructed. Indeed, eyewitness accounts noted that while the woman was choking, she was panicking, fanning her hands on her neck and throat, and unable to make any noise before collapsing. The plaintiff's nursing expert opined that the facility was negligent in failing to develop appropriate assessments and in failing to generate a plan of care adequately addressing the woman's high degree of risk for aspiration and choking.

The plaintiffs also sued two of the nursing home's board members and alleged that those two individuals failed to ensure that the nursing home had sufficient staff to implement its policies regarding the management and operation of the facility. The plaintiffs relied on case law allowing individuals serving on a nursing home's governing body to be held individually liable for failing to adequately staff a facility. The plaintiffs maintained that of all the board members, these two individuals exercised the principal power and influence of the board and day-to-day operations of the facility.

Leaders of the nursing home apparently recognized the clear liability in the case and placed a $1 million loss contingency in their budget shortly after the suit was filed. The defense did not dispute the alleged negligence as much as it contended that it had no liability insurance coverage and that it was in no position to respond to an adverse judgment should that contingency come to pass. While the case was pending, the Texas Department of Housing and Urban Development foreclosed on the facility. The home was sold to new ownership, and the sale resulted in a $926,000 excess for the defendant. The parties accordingly settled for $926,000, with $700,000 payable immediately in cash and an additional $226,000 payable if any of those funds still were in escrow after three years. The amount of the settlement, if any, attributable to the individual board members was not disclosed.

What this means to you: "This is clearly a case that should have been settled. There appears to be no question but that the nursing home knew that the patient had a documented history of dementia and difficulty in swallowing," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD. Barton notes that the nursing home not only had knowledge of the resident's dysphagia due to medication, but they also were on notice that the risk was real based on a prior choking incident at the nursing home. The resident should have been served a mechanical soft diet and been seated at a "feeder" table where she could have been supervised. Furthermore, a piece of brisket that is 4 inches by 6 inches could cause anyone to choke, especially an individual with documented swallowing problems. "Allowing the resident to be served such food while unsupervised borders on gross negligence," says Barton.

The volatile testimony of the plaintiff's speech pathologist clearly outlines the standard of care that should have been provided, which would include, at the least, an assessment of the resident's needs and a plan of care to address the resident's risk for aspiration and choking. According to Barton, however, there is a more basic issue at stake: lack of appropriately skilled and trained staff. Not only was the number of staff insufficient in this case, it appears that the staff was not adequately trained or skilled to manage what should have been a very manageable choking incident. A nursing home clearly has a responsibility to provide adequate numbers of appropriately trained and skilled staff, and it can be held liable for its failure to fulfill this responsibility.

Barton notes that the fact that two members of the board of directors of the nursing home were implicated in the lawsuit should serve as a notice that board members need to take their responsibilities seriously. Nursing home boards of directors should ensure that management hires appropriately skilled individuals and then provides those individuals appropriate training to manage residents with special needs.


  • Hale County (TX) District Court, Case No. A32834- 0305.