Nursing Home Patient’s Choking Death Case Must Go to Medical Malpractice Panel Before Going to Trial

Peanut-Butter-Jelly-SandwichIn Louisiana, all medical malpractice cases must first go before a medical review panel before proceeding to court. Despite arguments to the contrary by a nursing home patient’s family, a case involving the choking death of a┬ápatient was one of medical malpractice and not just simple negligence. The Louisiana Court of Appeal ruled that the case would require medical expert evidence in order to resolve it, so the matter was not one of simple negligence and would need to go before the panel before proceeding to trial.

The case pertained to the choking death of Jerry Don Campbell, who was a patient at Claiborne Healthcare Center after having suffered a stroke. In addition to the stroke, the patient had dementia and difficulty swallowing. On one day in June last year, Campbell retrieved a peanut butter sandwich from a sandwich cart and sat down to eat it. Some time later, nurses found him unresponsive. The staff transferred him to a local hospital, but he did not survive.

Campbell’s family launched a negligence suit against the facility, arguing that the patient needed help with his daily care, including eating meals. Given the patient’s known swallowing issues, the facility’s staff was negligent in failing to monitor his food choices as well as his food consumption, and Campbell’s eating peanut butter without supervision led to his death. The facility argued that the alleged misconduct, if proven, amounted to medical malpractice, and the family could not sue before taking their grievances to a medical review panel first.

The trial court sided with the family, and the nursing home appealed. The appeals court agreed with the nursing home, rejecting the family’s argument that the claim was one of general negligence. Any time a patient is harmed due to the actions or inaction of a medical provider, “including failure to render services timely” while in the process of receiving health care, that case is one of medical malpractice, regardless of how the patient or patient’s family describes it in the lawsuit.

The court pointed out that nursing homes are special cases because, even though patients are housed at the facilities at all times, they are not always receiving health care, meaning that not all instances of negligence committed by a nursing home would necessarily constitute medical malpractice. Campbell’s case was one of medical malpractice, though. In two previous lawsuits, Louisiana courts had ruled that nursing home patients who were harmed as a result of choking on food presented cases of medical malpractice. These disputes, those courts decided, required medical expert testimony regarding the nursing homes’ assessment, monitoring, and supervision of their patients, along with evidence regarding the appropriate standard of care for patients in the condition of the choking victims.

Campbell’s case was similar to the other two choking cases. The family would need to offer evidence about the facility’s assessment, monitoring, and supervision of Campbell. They would also need expert analysis of the staff’s failure to follow a speech pathologist’s recommendation that Campbell eat only pureed solids and liquids, as well as expert testimony about the staff’s response to patients in distress.

Medical malpractice cases, in particular nursing home negligence matters, require in-depth awareness of the law and trial procedure. If your loved one has been harmed as a result of deficient care received in a nursing home, you should retain a knowledgeable Louisiana attorney to assist you with your case. Talk to the Louisiana medical malpractice attorneys at the Cardone Law Firm right away, so that our attorneys can take their years of experience assisting nursing home patients and their families victimized by substandard care and put it to work for you.

For your confidential consultation, contact us online or phone Cardone at 1-888-89-CARDONE (1-888-892-2736).

More Blog Posts:

Nursing Homes Suffer Massive Defeats in Negligence Cases, Louisiana Injury Lawyers Blog, Sept. 25, 2013

What Louisiana Residents Should Know About Nursing Home Abuses, Louisiana Injury Lawyers Blog, July 16, 2013