By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles
News
In July 2020, a 15-year-old plaintiff was injured in a shooting, sustaining severe neck injuries requiring urgent medical intervention. He was initially treated at one hospital and later transferred to the defendant’s hospital. Despite his critical condition and being a minor, he was placed on an adult floor.
Within 48 hours, he underwent a barium swallow test to assess his ability to swallow. The test was found to be inadequate because it did not evaluate crucial consistencies like solids and thick liquids. Despite this, the plaintiff was discharged with instructions that included eating mashed potatoes, a recommendation inappropriate for his condition. Two days later, the plaintiff experienced severe respiratory distress after consuming the mashed potatoes. He suffered hypoxic respiratory failure, resulting in a cardiac arrest and significant brain damage, leaving him with permanent conditions requiring 24-hour care.
In 2021, the plaintiff filed a lawsuit against the hospital for negligence. The allegations included the inadequate swallow test, premature discharge, and failure to provide proper post-discharge care instructions. A jury found the hospital liable, awarding nearly $45 million to the plaintiff, emphasizing the severe consequences of the hospital’s negligence.
Background
In July 2020, the plaintiff, then 15 years old, was an innocent bystander who found himself in the crossfire of a shooting, resulting in a gunshot wound to the neck. The shooting caused multiple fractures and arterial damage, including a C2 transverse foramen fracture, a cutoff of the left vertebral artery at C4-C5, a right mandibular fracture, and bilateral external carotid artery injuries. The plaintiff was initially treated at a hospital, where he was intubated to secure his airway, before being transferred to the surgical intensive care unit (SICU) at the defendant’s hospital.
At the defendant’s hospital, despite being a minor, the plaintiff was placed on an adult floor, which the plaintiff alleged was not a suitable environment for his care. After 48 hours of hospitalization, the plaintiff underwent a barium swallow test on July 24, 2020, to assess his ability to safely swallow various food and liquid consistencies — a critical evaluation given his neck injuries and the associated risks of aspiration, where food or liquid could enter his lungs.
However, this test, was alleged to be grossly inadequate. According to the complaint filed by the plaintiff’s guardian in 2021, the test only assessed the plaintiff’s ability to swallow liquids and purees. Key consistencies, such as solids and thicker liquids, were not tested. Additionally, the use of a cervical collar during the test restricted the plaintiff’s neck movement, further making the test results questionable. The plaintiff alleged that the failure to attempt different strategies during the test, such as postural adjustments or effortful swallows, compounded the negligence.
Despite the flawed nature of the test, the hospital employee recommended that the plaintiff could consume purees and small sips of water. This recommendation, as later highlighted in the lawsuit, not only was inappropriate but dangerous, given the plaintiff’s condition. Following this, the plaintiff was discharged from the defendant’s hospital on July 25, 2020, with instructions that included consuming mashed potatoes — a recommendation made by a third-year resident and approved by a doctor at the defendant’s hospital. The discharge instructions, which failed to include critical care recommendations or adequate precautions to prevent aspiration, became central to the negligence claims against the defendant.
The consequences of this negligence became apparent two days later. On the morning of July 27, 2020, the plaintiff began experiencing severe respiratory distress after consuming mashed potatoes, as per the discharge instructions. The food became lodged in his airway and led to a life-threatening situation. His guardian rushed him back to the defendant’s hospital, where emergency life-saving measures were performed. However, the plaintiff had already experienced significant damage — hypoxic respiratory failure due to the obstruction and a resulting cardiac arrest. The lack of oxygen during this critical period also caused severe neurological damage, including an anoxic brain injury and encephalopathy, leaving the plaintiff with permanent, life-altering conditions that required 24-hour care.
The plaintiff’s guardian filed a lawsuit against the defendant hospital in 2021 for negligence. The complaint detailed the series of errors and omissions that led to the plaintiff’s severe injuries, including the inadequate barium swallow test, the failure to conduct follow-up testing, the premature discharge, and the failure to provide adequate post-discharge care instructions.
The case was heard by a jury, which found the defendant liable for the injuries sustained by the plaintiff and awarded the plaintiff and his guardian a verdict of nearly $45 million. The breakdown of the verdict included compensation for the plaintiff’s ongoing medical care needs, pain and suffering, loss of earning capacity, and other damages resulting from the defendant’s negligence.
What This Means for You
The recent verdict in favor of the plaintiff, awarding nearly $45 million in a medical malpractice case against the defendant, underscores the importance of adhering to established medical protocols, the necessity of comprehensive patient assessments, and the serious repercussions that can arise from lapses in care.
Medical negligence cases fundamentally revolve around the concept of the “standard of care,” a legal and medical benchmark that defines the level of care, skill, and treatment that is recognized as acceptable and appropriate by reasonably prudent healthcare professionals under similar circumstances. This standard is not a rigid rule but rather a flexible guideline that takes into account the specific context of each medical scenario, including the patient’s condition, the resources available, and the commonly accepted practices at the time of care. When a patient files a medical negligence claim, the central issue is whether the healthcare provider’s actions — or inactions — deviated from this standard, thereby causing harm to the patient. The standard of care serves as the baseline against which a provider’s conduct is measured. If the care provided falls short of this baseline, it may be negligent, particularly if the deviation directly leads to injury or worsens the patient’s condition.
A deviation in the standard of care can manifest in various ways, including errors in diagnosis, where a healthcare provider fails to correctly identify a condition that another competent professional would have detected. It can also occur in treatment, where a provider may choose an inappropriate or harmful course of action, or in aftercare, where a patient might be discharged prematurely or without proper instructions for managing their condition at home. Deviations from the standard of care are not limited to clinical actions but also include failures in communication. Healthcare providers are responsible for ensuring that patients and their caregivers fully understand the medical situation, treatment options, risks, and necessary follow-up care. Inadequate communication or unclear instructions can lead to misunderstandings, resulting in improper patient care and potential harm.
This case highlights the importance of comprehensive patient assessments in meeting the standard of care, especially when dealing with patients who present with complex conditions and severe injuries, neurological impairments, or swallowing difficulties. A key issue in this lawsuit was the inadequate barium swallow test performed on the plaintiff. The test, which should have been a thorough assessment of the plaintiff’s ability to swallow various consistencies of food and liquids, was incomplete and failed to test critical consistencies such as solids and thicker liquids. This oversight significantly increased the plaintiff’s risk of aspiration, which led to severe and life-altering complications when he was served mashed potatoes at home. Inadequate assessments not only put patients at risk but also expose healthcare providers to legal liabilities for failing to meet the standard of care to those patients.
Another key point in this case was the premature discharge of the plaintiff. Patients and their caregivers rely heavily on the guidance provided at discharge, especially when managing complex conditions at home. Discharge instructions must be tailored to the patient’s specific needs, be easy to understand, and include precautions to prevent potential complications if necessary. Providers also should ensure that caregivers fully understand these instructions before the patient leaves the hospital. Despite the incomplete assessment and the high risks associated with his condition, the plaintiff was discharged with instructions that were later found to be dangerous. The discharge decision, made, in part, by a third-year medical student without adequate follow-up testing or clinical observation, contributed to the plaintiff’s subsequent medical emergency and long-term injuries. This omission did not meet the standard of care owed to all patients.
The standard of care that medical providers must meet also continually evolves and requires ongoing education and training for healthcare professionals. Providers must stay informed about the latest best practices, particularly in areas such as patient assessment, discharge planning, and interprofessional communication. Regular training sessions, continuing education programs, and simulation exercises can help healthcare providers stay up-to-date and improve their skills, ultimately reducing the risk of errors and improving patient care.
The particular standard of care for patients with impaired ability to swallow often includes evaluation, assessment, treatment plans, patient and family education, discharge planning, and home care, all of which usually is overseen by a licensed speech therapy professional. Medical students, interns, residents, and even physicians may not have the expertise, training, and experience to know what happens inside the palate of an injured individual attempting to swallow. Physicians rely on speech therapists to guide them so that they can write appropriate orders for in-hospital and home care. A patient with these extensive injuries can aspirate on their own oral secretions. If the hospital did not have a therapy department, the patient either should have been transferred to a hospital that did or placed on gastric tube feedings or intravenous nutrition until seen on an outpatient basis.
Swallowing evaluations are ordered by physicians but performed by speech therapists, who may recommend the barium swallow evaluation. That radiological examination is done under the supervision of a radiologist, and then interpreted with input from speech therapy. The speech therapist picks up the care from there, getting needed orders for food consistency, positions for swallowing, post-swallow interventions, and more from physicians based on recommendations the therapists make. The standard of care requires that the professional with the most knowledge and expertise be given the opportunity to take part in the care of the patient.
Reference
- Complaint filed Oct. 5, 2021, in the Philadelphia Court of Common Pleas, Case No. 211001422.
In 2021, the plaintiff filed a lawsuit against the hospital for negligence. The allegations included the inadequate swallow test, premature discharge, and failure to provide proper post-discharge care instructions. A jury found the hospital liable, awarding nearly $45 million to the plaintiff, emphasizing the severe consequences of the hospital’s negligence.
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