Considerations in Choking Cases
Could a choking incident in a nursing home have been prevented? Many choking emergencies happen because of missed assessments, poor supervision, or failures to follow care plans. Knowing what should have been done is critical when evaluating these cases. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Elizabeth McKinney to talk about the key medical and legal considerations in nursing home choking cases.
Intro
Schenk:
A choking emergency may last only seconds, but the warning signs can appear in the records long before it happens. I’m attorney Rob Schenk. This is the Justice for Residents podcast, and joining me this week is Liz McKinney, a speech language pathologist, to discuss choking cases in long-term care, including the records that she uses to reconstruct the timeline, whether supervision levels can establish negligence, and what happens when choking residents have a DNR in place.
Stick around.
Okay, so I dig that jingle. That intro music, that’s pretty good. That was, What is it, Gene? What is it called? New Orleans Funk. I heard a little bit of New Orleans in there, but I feel like it was mostly… It was k- it was funky. This week, folks, it’s all about understanding how we can, at least from a broad standpoint, approach choking cases.
We’re not doing that alone. We have Liz McKinney. But your homework, if you want to know more about this subject, is to go back and listen to episode 197, which we talked about aspiration pneumonia, which is a different type of swallowing incident, for lack of a better word. We talked to Diane McAdams Jones about that.
We did go in a little bit into choking, the difference between choking and aspiration pneumonia. We also, in episode 236, we talked about preventing choking with attorney Lauren Ellerman. That was a great episode. I w- I would highly recommend you check that out. And then also episode 245, which we talk about do not resuscitate, DNR orders, and we did that with nurse expert Cindy Neese.
‘Cause we do in this episode with Liz, we talk about how the presence of a DNR may or may not alter the way in which the staff should essentially treat a choking resident. So that’s your homework for this week. And now we need to get into the meat and the pureed potatoes of the episode.
Guest Intro
Schenk:
We are joined this week by Liz McKinney, who is a medical speech language pathologist and a forensic expert with 18 years of nursing home experience.
She works on cases involving dementia, neurological injuries, choking, aspiration, and swallowing disorders. Liz is a certified dementia provider and has advanced training in Parkinson’s and dysphagia care, and we’re so happy she’s on the episode with us to guide us through this.
What Records Best Reconstruct the Choking Timeline?
Schenk:
Liz, let me ask this right off.
When we are trying to reconstruct what happened with respect to a choking incident, what are the records that we’re looking for? What are the most on point records that can tell us that?
McKinney:
You always wanna look at the nursing notes first just to see what happened, when it happened, what they wrote down, what they didn’t.
You wanna look at the MDS records really, but that doesn’t really reconstruct the timeline, it just kinda tells you what they should’ve been doing. The CNA mill documentation. You wanna see what they wrote down that they were doing, and when they passed trays, and what the patient was doing, where they were.
And it’s always big for me to look for an incident report. They’re not always there, but they should be. And then m- I really like to look at the EMS run sheets the report from the EMS because that’s really revealing of how they found the environment, where the resident was and everything that happened to them at that point, or to that point.
Learn more about swallowing disorders and their medical complications on the impact of preventive health measures in elderly populations.
Schenk:
When you mentioned the, a CNA sheet, what’s typically on that, and why is it important to you?
McKinney:
The CNAs usually talk about how much they have been eating how much assistance they have needed at a certain meal, w- what they did at that meal, and it also talks about how much assistance they need to complete activities of daily living.
I’ve often noticed that in choking cases that the people the residents require more and more assistance up until the event. So you’re seeing a steady decline in function, and then you see the choking event. So that’s always something I look for.
Schenk:
And you mentioned the MDS. Now, the MDS, I would imagine, is not going to have information concerning the actual choking incident. So what are you looking at in the MDS?
McKinney:
You’re looking at the Section K documentation. That’s where they have the swallowing impairment. And you wanna make sure that they have it listed, that they have… They’re acknowledging it and that they have, I don’t know if the care plans go with the MDS, but also that they have a care plan for s- dysphagia, and for a modified diet, and for all the supervision they will need. And- It’s a separate thing.
Schenk:
And so if the MDS assessment indicates that they should have some type of altered diet. How does that information get transmitted to the staff that actually does the feeding?
McKinney:
If a person has dysphagia, if they have any risk factors for dysphagia, they should always be seen by a speech pathologist.
When a resident comes into a skilled nursing facility, one of the first things that’s done is they’re screened by each of the therapy disciplines, PT, OT, and speech. And, if they have any red flags for dysphagia, if they have head and neck cancer, if they have dementia, if they have a CVA or a TBI, anything that would cause them to have a dysphagia we always wanna look at them more carefully.
So they would be picked up by, we call it picked up by therapy. We work with them, and we can modify their diet, or we can educate caregivers. So that’s usually where it comes from is the speech therapy.
Families can better understand the causes and symptoms of dysphagia on the impact of preventive health measures in elderly populations.
Schenk:
Is there this might sound like a strange question, but once a resident after that, once the MDS process has started and the resident- is flagged for a speech language consult, is there a timeline? Is there okay, is this the next day? Is it next week? ‘Cause it seems like it potentially could be a serious problem, but, I understand that they can’t do it right away, but w- is there some type of is it urgent, super urgent?
McKinney:
I would say it’s urgent.
But usually it’s not a flag… usually it’s in the MDS assessment because it was flagged elsewhere. So what you would see as an urgent need for a consult would be in the medical records, like in the nurse’s notes, if they notice something, or if the CNAs reported something to the nurses, or if the other therapy disciplines notice something.
And if they refer to you, you’d probably wanna do something within the next 24 hours.
Recent clinical findings provide additional evidence on the impact of preventive health measures in elderly populations regarding aspiration-related complications in older adults.
Schenk:
I see.
McKinney:
‘Cause you- and then if it’s done by us, that’s how it gets to the MDS.
Schenk:
I see. ‘Cause t- typically, in my experience, it never, there’s never a, a priority level attached to a consult. It’s just consult speech language, consult physical therapy, whatever, but without ASAP or, before next week or whatever.
There’s n- Yeah … usually not a timeline. But from what I hear you say- Yeah … if the situation is one in which the person’s potentially in danger, it would be good for the next day or- Yeah … within 24 hours, right? Like-
McKinney:
Yeah, it would be good, 24 to 48.
Schenk:
Yeah.
McKinney:
But there are those instances where it happens over the weekend, and there’s no coverage on the weekend.
Schenk:
Okay. So what happens after the, there’s been an assessment by the nurse prob- in the comprehensive assessment process, that MDS process with the nurse. They flag a speech language pathologist for a consult. What is the speech language what is the speech language pathologist’s role in perhaps- revising the care plan based on what in their expertise they find?
McKinney:
When we go in, when we get those screens they’re called, that’s what we call them, the screens, to go see people. We always go in and we, give them a snack, give them a drink. We do a three-ounce water assessment where they have to have three ounces of water, and they have to drink it without any difficulty, and if they pass that, then they’re okay with liquids.
But there’s a quite a process we do. But if so let’s say that I was as- assessing you and, you were coughing on thin liquids, and you were having trouble chewing, so I wanted to recommend that you’re on a mechanical soft diet with nectar-thick liquids. Usually I wouldn’t recommend the nectar-thick liquid diet without an objective assessment because sometimes the thickened liquids are worse.
If a person were to aspirate or get them in their airway or which would go to the lungs, the thickened liquids they’re harder to expel. They’re more likely to cause pneumonia, aspiration pneumonia. It’s not best practice to just downgrade liquids at bedside, but to downgrade the diet at bedside would be okay.
And so I would write an order in the chart the EMR usually and write a diet slip to bring to the kitchen. And then that diet slip is given to… One copy is given to the kitchen and one copy is given to the nurse, and so the nurse is responsible for integrating all the information. They have to make a copy of it and put it in the records.
Learn how food or liquid entering the lungs can cause serious illness by reading our guide to aspiration pneumonia.
Schenk:
So essentially it’s like a, it- for lack of a better word, it’s like a physician’s order. It’s- … it’s the law.
McKinney:
Oh, it is. Yeah. It’s a physician’s order. It has to be signed by a physician, but we write it.
Schenk:
D- okay.
McKinney:
Now- We recommend the physician orders and the nurses carry out.
Schenk:
It… I was just about to ask, thank you.
Is there… H- has there ever in your experience ever been a situation in which there’s conflict between the attending physician and what the speech language pathologist has, has advised?
McKinney:
Not really conflict, but they have overridden it before because of something like a hospice patient who wanted to eat whatever they want.
And we don’t recommend a regular diet for somebody who is not safe to have regular food, so we leave it to the doctor to make that recommendation.
How Do Diet Orders Expose Foreseeability of Choking Risk?
Schenk:
And how in your… in, in kind of your estimation how do physician’s orders or the, the orders or recommendations by a speech language pathologist, how does that factor into the foreseeability of a choking incident or choking risk?
McKinney:
Yeah. We always look at… Something very important to look at is the cognitive status. If a person’s really confused, if they’re not gonna be able to sit upright to take small bites, to eat slowly, to follow the aspiration precautions, then it’s usually a good idea to modify their diet. And so we always look at their physical status, their cognitive status and we o- we offer them the least restrictive diet.
So the safest diet they can have that is the most nor- most normal. So sometimes that’s puree, sometimes that’s mechanical soft where the meat’s ground up. Sometimes it’s bite-sized pieces, and we recommend that based on their function, their physiology, their cognitive status. And you wouldn’t recommend steak for somebody who was very confused.
So we always look to reduce risk, to reduce the chance that they will choke.
If your loved one developed a serious respiratory infection in long-term care, find out whether pneumonia at a nursing home may support a legal claim.
Can Supervision Levels Prove Breach During Meals?
Schenk:
So talk to… I guess I ki- I get that process of we- Sure … here’s what they probably can have and, i- in terms of safely consume. Talk to me about the role of supervision in that. Like- Oh, yeah … what are the kind of various levels of supervision, and what do they mean when you’re talking about preventing choking?
McKinney:
Yeah. So oftentimes I’ll see line of sight supervision, meaning that the person has to be where you can see them. There can be one-to-one supervision, where it’s just you and the person. There can be k- Trying to think of others. Really, those are the only big… Which, which other ones have you seen?
Schenk:
I’m not an expert, but I see just like in a in a common area, like you- … your person is in a common area, so I don’t know if that’s- … line of sight or just, if you hear a noise, you can come running in there. I don’t know, like- Yeah … but that’s- Yeah
I usually see line of sight and hands-on. Let me- … ask this. So and I might have just added hands-on there. So is line of sight- … and what’s the other one, one-on-one? What is the word- One-on-one … you’re using?
McKinney:
One-to-one, so one colon one- Okay … is what they usually write.
Schenk:
Okay.
And this might be splitting hairs, but typically what does that mean? What does one-to-one feeding look like?
McKinney:
Exactly what it is, that somebody’s sitting right there with you feeding you.
Schenk:
Okay. I, I,
McKinney:
and I guess- they
Schenk:
can also say- Go ahead. Sorry …
McKinney:
one, one to three, so it could be one, CNA sitting with three residents at a table or helping them one to any number they could have.
But one-to-one means that the person has to be paying strict attention to you. They have to be watching you. They have to be feeding you, and not just because you can’t feed yourself but because you can’t do it safely.
Schenk:
Okay.
McKinney:
You can’t eat safely.
Schenk:
Okay. That’s, that was kinda what I was gonna say. So if we’re talking one, one to one-
It, I guess it, it just, it depends on what the resident’s needs are with respect to how much l- physical effort is provided. So if I’m putting the spoon up to your mouth, or if you’re doing that yourself, if I’m putting the food on the utensil and then you put… Things like that. That would already have been worked out.
McKinney:
Yeah. Yeah. And, the type of supervision is not the type of feeding that’s needed. That’s different. So a person can feed themself even and still be one-to-one supervision.
Schenk:
Okay,
McKinney:
so- It just needs somebody with them cueing them consistently.
Schenk:
I guess I’d never consider that. So the idea of supervision is almost strictly f- to watch for the possibility of choking and nothing else.
Not it’s not supervision to make sure you eat all your vegetables. It’s supervision- That’s right. It, it- … to prevent you from choking or aspirate.
McKinney:
To make sure you’re following those precautions, the small bites small sips, slow rate, that you chew completely, that you’re, taking sips between bites, clearing out your mouth, not pocketing food. All those things could cause choking.
Understanding the different types of nursing home staff can help families identify who is responsible for resident care.
Schenk:
And in your experience, this is almost certainly being done by a CNA, not a nurse?
McKinney:
Yeah, usually a CNA. Okay. And there should be records that all the CNAs, all the nurses were trained. On the proper precautions
What Documentation Shows Meal Assistance and Choking Concerns?
Schenk:
And how is it normally… is there normally a document that tells you that person ate X amount of food, or person struggled eating this particular type of food, or person coughed a few times?
Is that typically a nurse note, or is there some type of other type of note?
McKinney:
The CNA flow documentation the that’s where they put the percentages they ate. But they really don’t write down if they had difficulty. The, maybe the nurse would write a note the patient was coughing more today with his meal, but you wouldn’t expect to always see that.
But it could be there. It would be in the nurse’s notes, not the CNA notes.
Question of the Week
Schenk:
All right, we interrupt this interview for the nursing or regulation question of the week. This week, folks, it’s pretty difficult. So the lev- difficulty is hard this week. So look down at yourself. If you got any crumbs, any stains, you dropped some food on yourself, or if you got some holes in your clothes, for the rest of today, if you get this question right, you can blame it on your kids or your pet.
So for me, this is not a mustard stain of my doing. This is because of my toddler. And my, my suit jacket right here, it’s missing a button, not because a button fell off of it and I just didn’t notice. My toddler kicked it off of me. So these are the things that you get to say if you get the question right.
So here we go
Under 42 CFR 483.90e1, resident bedrooms must be located A: at or above grade level, B: above grade level, or C: below, at, or above grade level. And of course, we’re not talking about educational grade level like first grade or second grade. We’re talking about the grade level with respect to construction, which is the ground surface elevation surrounding the building.
So which one of those is required for resident bedrooms?
And that answer is A, the nursing h– all nursing home resident bedrooms must be located at or above grade level In the choking cases that you have seen, is it normally a breakdown in the assessment process, like this is what this resident needs to be safe? Or is it a breakdown typically in the supervision process where we knew what they needed, we just didn’t give it to them?
McKinney:
Yes. It is usually the supervision, the carrying out all the safe swallow strategies, carrying out even the diet recommendations. Often the people get the wrong diet from the kitchen. And that, that’s very unfortunate when that happens, but it happens.
Why Are EMS Records Critical in Choking Cases?
Schenk:
And I imagine that’s probably why when you’re investigating a choking case, it’s the im- there’s a lot of importance on, as you mentioned, the incident report and the EMS records, and potentially a 911 call.
McKinney:
Yeah. You always wanna know that timeline between when it happened and when the EMS got there, how long it took them to call. I just recently had a case where the person choked, and they, I guess they cleared it. They stopped coughing, but that’s because it was aspirated. And then so they didn’t call the EMS for an hour.
And, by that time, the food and liquid, or the food had gotten into their lungs and caused pneumonia. It’s very revealing to find out that timeline from the EMS. Yeah. And they provide the time sheet usually.
Schenk:
And I find that typically the EMS, it’s… They don’t have a dog in the fight, obviously. And I feel like there’s a lot of truth in EMS records. So it’ll be like, “Facility told us the person was alone,” or v- “CMS told…” Or, “The e- the facility told us X, Y, and Z,” and that gets put in the EMS records, and oftentimes the EMS account conflicts with what perhaps is in the notes.
McKinney:
Exactly. Yeah, ’cause they don’t have a reason to hide anything, so they’re telling you the truth usually.
Schenk:
That’s how it goes, yeah.
McKinney:
Yeah.
What is the Process if the Resident Is DNR?
Schenk:
Tell me about, you mentioned like you’re looking sometimes at how long between an incident, either an aspiration incident or a choking incident, and when EMS is called. Talk to me about how typically if the resident is DNR, do not resuscitate, how does that typically factor into negligence or what they should be doing?
McKinney:
Just because they’re DNR doesn’t mean they do not treat. You always have to go, you always have to remove the obstruction. You always have to do everything you can. To clear the choking episode. And then I believe you would, you’d still give them CPR. But it just, the standard of care is unchanged. You would do the same thing with them.
For a deeper discussion of causes, prevention, and legal issues, listen to Episode 197: Aspiration Pneumonia in Nursing Homes.
Schenk:
In the heat of the moment, typically how is it understood whether or not a particular resident is DNR whi- while they’re in the middle of a choking incident?
McKinney:
Usually the D- the patients that are DNR, in my experience at my facilities they have had communication, a DNR book up at the nurse’s station a DNR, maybe a, like a purple dot on their wrist bracelet or on the door.
They have lots of different ways to communicate. It’s in the medical records also, DNR But I guess- There’s usually that book …
Schenk:
but I guess if I understand you correctly it’s almost irrelevant. You’re, you are- Right … trying to get an obstruction out irrespective- Yes … of what their status is.
McKinney:
Yes.
Because, that’s scary. That’s not something you wanna… That’s not a way to die. You don’t wanna choke to death. That’s… You wanna get that out. It doesn’t mean anything.
Schenk:
Yeah, ’cause typically in, in my cases I don’t think… I think it’s been a long time since I’ve seen, oh, we just let this individual expire with the- Right
obstruction. Usually it’s, we are trying to free it, but once they lose consciousness then we stop. That’s usually how it, in my cases it seems to be.
McKinney:
Yeah.
How Should Experts Investigate a Choking Case?
Schenk:
So tell me then about, do you typically… Do you work from the idea, when you’re investigating a choking case, are you working from the idea that it was a supervision failure and then working backwards to looking at the assessment? Is it holistic? How is it typically that you’re doing that?
McKinney:
What I typically do, I start at the end. So I start with the EMT reports, I start with the hospital reports, and I find out, what happened, and then I reconstruct the timeline of events. I don’t go into a case, just assuming that something was done wrong because I work for both sides of the coin, I have some… I have defense cases also. And, it- there’s not always a breach. The- sometimes you can do the best things, and sometimes the problem is not the speech pathologist. It’s not the supervision. It’s just things happen sometimes. But so you… I’m sorry, I got off track. So you wanna start looking at the what happened at the end, and you wanna go backwards from there just so you can find all the significant events that, actually pertain to the choking act, accident.
Families should know how to recognize the signs of nursing home neglect before a preventable injury becomes life-threatening.
Schenk:
It’s really good to hear you say that you do both sides, ’cause I typically- … find that some of the, at least in my experience, a lot of the great experts, they… it’s they do work for both sides. And that’s how you- Yeah … kinda know that it’s objective. More, more likely to be objective.
McKinney:
Yeah. Because it all, it is all about the standard of care, and it’s all about what the facility did. It’s not about pointing fingers. It’s not about assuming something was done wrong. You look and see if it’s actually a breach. The standard of care.
End-of-life care decisions are explained in Do Not Resuscitate: Facts in Nursing Homes.
What Are Red Flags for Negligence in Choking Cases?
Schenk:
Is there anything that you see in records that it’s almost like, “Oh, th- this was negligence,” or, “Oh, this is not negligence”? Is there telltale signs that there’s a blatant, this is a red flag?
McKinney:
I would say something that I don’t like seeing is if a person has advanced dementia and they don’t have any modifications in their diet. If this person is non-verbal and they are very advanced dementia, and they have, regular chicken wings, regular steak coming to them, or they don’t really serve regular steak, but, just a regular piece of chicken, and you’re expecting a person to chew that.
Dementia is… I’m a certified dementia provider also so that’s a, a big passion of mine, and dementia in itself is a degenerative s- condition, so it’s like aging in reverse. It’s called retrogenesis. So you lose things in the reverse order that you gain them. A person will eventually become the status of a baby again, and, they’ll, so they’ll be teenager, then child, then toddler, then baby.
So the toddler to baby stage, you’re not expecting them to eat regular food. If I see a person with re- ma- advanced that’s a long answer, but advanced dementia on a regular diet would be a red flag for me. No- And the supervision levels.
Learn practical strategies for reducing swallowing-related injuries in Preventing Choking in Nursing Homes.
Schenk:
Yeah, no that’s perfect, ’cause I was gonna ask you what’s the connection between dementia and choking risk, and you answered it.
That, that makes- Yeah … that makes great sense that if someone is advanced along that timeline, they’re losing slowly or perhaps quickly the ability to chew and process food mechanically like- … you and I do. Yeah … liz, this has been fantastic, and we really appreciate you coming on the show and sharing your knowledge with us.
McKinney:
Thank you. Appreciate it.
Schenk:
Folks, I hope that you enjoyed the content this episode. New episodes of the Justice for Residents podcast come out every single Monday. Please be sure to like and subscribe wherever you get your podcasts from. And if you have an idea for a topic that you would like for me to talk about, let me know that.
If you have an idea for a guest that you would like for me to talk to, please let me know that as well. And with that, folks, we’ll see you next time.
Thanks for tuning in to the Justice for Residents podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney-client relationship between the listener and either the host or any guest. New episodes are published every Monday and are available on all your favorite podcast apps, as well as on YouTube and our website, justiceforresidents.com.
Again, that’s justiceforresidents.com. The Justice for Residents podcast is hosted by Rob Schenk, a trial lawyer representing victims of nursing home abuse neglect throughout the state of Georgia. We’ll see you next Monday.