December 18, 2012

Contact: Eric W. Boyer, Esq.
Managing Partner
305-670-1101 Ext. 1023


Assisted Living Negligence, Wrongful Death and Punitive Damages

Robin N. Khanal

FORT LAUDERDALE, Fla. — Quintairos, Prieto, Wood & Boyer, P.A. (QPWB) trial attorney, Robin N. Khanal (Orlando), obtained a defense verdict in Broward County, Florida, in an assisted living case involving a 97-year-old resident diagnosed with Alzheimer’s and dysphagia.

The resident lived in the assisted living facility for approximately four years before her death. Initially, she ambulated with the assistance of a walker. Due to a syncopal episode, she fell and fractured her hip. She underwent a hip repair procedure and rehabbed at a skilled nursing facility. She was eventually readmitted to the assisted living facility where she used a wheelchair to ambulate. She also received day-time services in the memory care unit for additional assistance with her activities of daily living.

The resident fell again three more times. One of the falls required emergency care. The resident also suffered from unexplained injuries, including black eyes.

One month prior to the resident’s death, she was hospitalized for acute bronchitis. While at the hospital, she underwent a clinical swallow evaluation due to a diagnosis of dysphagia. Her diet was restricted to soft foods and thickened liquids. The hospital indicated the need for skilled nursing, but the family elected to return the resident to the assisted living facility. The resident returned with an order for soft foods and thickened liquids.

Approximately three weeks after her return, the resident received an order for a pureed diet with thickened liquids. There was no medical reason indicated for the diet order change.

Three days later, the resident was being fed breakfast by an aide. The resident became unresponsive and the nurse was summoned. The resident was assessed with a pulse, but she was nonresponsive to verbal and tactile stimuli. Food was removed from the resident’s mouth during a sweep. Emergency medical services were called and upon their arrival they noted the resident was pulseless. The paramedics noted food in the airway as well. The resident was intubated and received additional resuscitation efforts. Her vitals were re-established and she was transferred to the emergency room.

Upon admission to the emergency room, the resident was extubated and more food was noted in her mouth. Another tube was inserted to maintain her airway. The family eventually decided to cease all measures and the resident passed that same day. Upon autopsy, the medical examiner concluded the resident died as a result of stigmata from choking. To support his finding, the medical examiner photographed a piece of egg in the resident’s trachea.

The Estate claimed the assisted living facility failed to follow a physician’s order for a pureed diet and as a result, the resident choked to death while being fed by the aide. The Estate also claimed the employees of the assisted living facility failed to provide life saving measures once the resident became unresponsive. Finally, the Estate was allowed to add a claim for punitive damages due to affidavits filed by three experts. These experts all testified at trial and claimed the facility’s conduct was outrageous. In closing, the Estate asked for $750,000 for each of the two surviving daughters. The issue of punitive damages was left for the jury to determine as part of Florida’s bifurcated process.

The Defense first argued the change in diet was not supported by the medical evidence in the case. There was no suggestion of aspiration during the last month of the residency; therefore, the resident could consume soft foods safely. This argument was supported by the testimony of a Speech Pathologist.

The Defense also argued the resident had a medical event while eating breakfast, which caused her unresponsive episode. The resuscitation efforts of emergency personnel caused food to regurgitate into the resident’s mouth and mechanical airway efforts caused food to go into the her trachea. This argument was supported by the testimony of a Multi-Board Certified Emergency Room Medical Doctor.

The jury returned a unanimous defense verdict within three hours.

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