How to Prevent Choking in Nursing Homes: Best Practices
Ensuring the safety of nursing home residents requires more than just attentive care; it demands specific preventative measures tailored to individual needs. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Lauren Ellerman, Esq. to discuss the legal and practical approaches to preventing choking incidents in nursing homes, emphasizing the critical roles of staff training and dietary management.
Schenk:
Preventing choking in nursing homes. Stick around
Hi out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode today. We are talking about choking in nursing homes. Who’s at risk. What are some of the interventions that we can put in place to prevent choking? And then what are some strategies when you’re taking these types of cases, but we’re not doing that alone.
All right. Now time to get into the meat and potatoes of the episode. Again, talking about choking and nursing homeless, but we’re not doing that alone. We have the fantastic trial attorney, Lauren Ellermann of Frith and Ellermann out in Virginia. Take care. Lauren is a trial lawyer and former chair of the Virginia trial lawyers, longterm care section. Visit Frith Law Firm.
She practices in the state of Georgia or a set of Georgia. She practices in the state of Virginia, which is Virginia state or Commonwealth. I don’t know. State of Virginia. She believes for profit longterm care is broken in America and does her best to educate families on how to avoid, navigate, and prevent.
And circumvent this broken system. And we’re so happy to have her on the show. Lauren, welcome to the show.
Ellerman:
Thanks Rob. Appreciate it.
What are some risk factors for choking in nursing homes?
Schenk:
So I think that this is something that that I’ve been wanting to have an episode about for a long time. I’ve had aspiration pneumonia, I’ve had aspiration episodes, but I haven’t had a straight up choking episode.
I just want to start from the basics. What in your experience, what, what would put. Your average nursing home resident. at risk for choking?
Ellerman:
Sure. So the medical literature is pretty clear. It’s not very controversial on this, Rob. And there are just some medical conditions that put some elderly or compromised residents who need assistance with daily living at risk for choking.
Parkinson’s is a big one. Any kind of recently diagnosed swallowing condition. I just had a case where a client was diagnosed with a corkscrew esophagus, which is an acute response to something. It’s a horrible condition, but that makes swallowing really difficult. Multiple sclerosis, any neurological condition that can affect the throat and your ability to swallow a stroke, obviously, or someone that has had head and neck cancer before can also have a real problem with swallowing.
So it’s not just age, sometimes dementia, so sometimes cognitive issues, but mostly it is an independent medical condition that affects your swallowing, like a neurological condition like MS or Parkinson’s or something like that.
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Schenk:
So I guess a lot of these conditions, it’s really just affecting the physical ability to consume the food as opposed to, although this does happen, as you mentioned, the cognition issue, like a capacity issue, it’s mostly mechanical,
Ellerman:
it is mostly mechanical.
Now, sometimes you’ll see, A cognition issue, like they forget to chew or they don’t chew enough or they’ll pocket food because they forgot to chew it and swallow it. But most of the cases I’ve had that are very clear negligence cases, all of those people had an independent condition that, that really put them at risk for choking incident because they could not swallow, even if they wanted to.
They could not swallow well.
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What are some interventions to prevent choking in nursing homes?
Schenk:
So let’s actually get into that. Typically in your experience, what would the nursing home be doing to, if a resident came in with one of those issues or maybe a host of issues, what does the nursing home need to do to prevent the likelihood of choking?
Ellerman:
So a couple things.
Obviously, as soon as they’re there, physician needs to examine them and determine, the medical director needs to determine if speech therapy is needed or helpful to assist in swallowing. But also with those assessments, if you are diagnosed with a swallowing issue and you have to be then referred to speech therapy, who will then determine if you need a modified diet.
Or some other kind of care plan intervention to make sure that you can eat safely. For example, in an assisted living facility, where there may not be a care plan that’s that specific but you do have some kind of, the staff needs to be notified that Mr. Smith needs help because he has Parkinson’s, he can’t cut his food, or he can’t eat meat, or because he has multiple sclerosis, he can’t swallow anything over, two inches or one inch.
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And so somebody needs to cut his food prior to it being served. So it depends on the condition, but typically you will have interventions regarding meal service. So whether it’s a soft mechanical diet that they cannot be served any solid foods, or if they can be served solid foods, they have to be prepared in such a way that the person can swallow.
So you’re looking for a dietary order. Somewhat related to speech therapy, somewhat pre meal related to what a person can do safely.
Schenk:
Interesting. We have almost the nursing process, which would be somebody assesses this individual. The you figure out all the things that they have their clinical condition observation, and then you come up with the interventions what about, and these are interventions like that you mentioned that a lot of them are dietary, no, like mechanical diet or soft diet, these type of things. What about interventions in terms of have you seen your experience with respect to like actually providing the food? Do you ever see interventions? Like you need to physically observe this person or you need to make sure this person’s hand goes to their mouth, that kind of thing.
Ellerman:
Great point. So I’ve seen everything from, from this person has to be observed during mealtime to queued during mealtime to served their meal during mealtime in addition to someone who is independent in eating, but they have to have a special diet or the meal has to be prepared for them in a certain way.
So there’s probably at least 10 to 15, I would say, interventions that A speech therapist or a doctor could order to make sure that someone who is a choking risk can eat safely. And they’re not that complicated, sometimes it’s nectar thickened liquids, rather than thin liquids. Sometimes it’s mechanical soft on meat, but vegetables can be eaten.
It’s Individualized, but not so individualized that every facility hasn’t done all of this before. They see it all the time. When I depose these nurses, all the questions I ask, have you ever had a patient on mechanical soft diet? Of course. Have you ever had a patient who had problem swallowing?
Of course. Have you ever had a patient you had to cut their meals for them? Of course. This is not new to these facilities.
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When do these incidents usually happen?
Schenk:
In your experience with choking cases, Is it mostly a breakdown in the planning process? In other words, we don’t have the correct interventions? Or is it typically the execution of the interventions?
Ellerman:
All of the cases that I have taken have been execution issues. So the care plan says X and X didn’t happen. That is 100 percent of all the cases I’ve litigated. And usually Rob, it’s either in the first two weeks of being admitted. And so you might have a new nurse who hasn’t taken care of Ms. Smith before.
And so she shows up and we all know that CNAs don’t look at the chart as much as we wish they did. They take report and they didn’t know that. that Ms. Smith required the special diet, and so dietary brought her a normal meal, you didn’t know better, you served it to her. Or movement from an assisted living into a memory care unit, or movement from memory care into a nursing home.
It’s usually at the new transition of care where these execution issues are happening. It is very rare to see, someone who’s been in a nursing home for a year served the wrong meal. By that point, everybody knows that person. They know what their needs are and they can open the tray. I will say this too.
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COVID has thrown a real wrench into this because it used to be that everybody was served in the dining room. And so you could have a nurse sitting at a table, watching everybody eat at the same time. But now a lot of these facilities are serving in the rooms and they haven’t gone back to the dining hall model.
And I think that’s greater risk because it’s not like they’re hiring more staff. To watch these people eating. And so more people are eating alone.
Schenk:
That’s actually a great point. And in a segue, I was going to ask you is that so you have a breakdown in the execution of what’s going on or what’s planned, right?
In your experience, are you finding that is typically, and this is probably the most in almost all nursing home cases, is that in your opinion, typically because of overworked understaffed situation or lack of training or a combination?
Ellerman:
All of the above. So let’s break it down. Most nursing homes, the corporate entity that makes the food is not the same corporate entity that staffs.
The nurses. So you have corporate entity one who makes the food. They should have some sort of dietary order from the nurses that says Mrs. Smith needs special diet. So then what they do is they create a little dietary ticket and the little dietary ticket says Mrs. Smith needs mechanical soft diet.
So communication number one is nursing to dietary. Communication number two is ticket on tray. Number three is tray being delivered to the correct patient. And also nursing verifying that’s the correct tray for the correct patient. So there’s lots of different places the ball can get dropped. It could be dietary.
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Maybe they had a note that they failed to put in the system. Ms. Smith needs mechanical soft. Maybe they had a note they failed to put in the system that says Mr. Smith needed his meal cut up. So sometimes it’s not even the nurses. Sometimes it’s dietary. Sometimes it’s both. I have seen sufficiently Staffed facilities screw this up.
I’ve also seen understaffed facilities screw this up It truly and is it training? Is it experience? Yes. Yes. Is it understaffing? Yes. It’s all of the above but there’s a lot of points at which these mistakes can be made in a medical record Sadly,
Schenk:
well speaking of record
Ellerman:
Yeah.
What documents are important in nursing home choking cases?
Schenk:
Let’s fast forward.
You’ve taken on a case. It’s a choking case. Your typical nursing home choking case. What are going to be some of the principal key categories of documents that you’re going to want to look at to substantiate your case?
Ellerman:
The first thing I do is I FOIA the 911 call. I don’t care what the nursing home records say.
I want to know what was said to a third party in that scary moment where that you walk into the room and that patient has been eating lunch and they’re. You’re no longer able to breathe or speak or something’s happened. What did you say to 911? I want the ambulance records. I want to know, did the emergency personnel who showed up find vomit?
Did they suction food out? I want to know what the third party say way before I see what the nursing home records say. Okay, so those are the first things I do is I try to get those third party records. Tragically, Rob, most of these are death cases. An elderly patient doesn’t survive a choking and then have a medical malpractice case, right?
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So choking causes death. You, if you choke and you survive, you don’t call me. If you choke and you survive, you think, thank God I survived. So a lot of times I’m looking at the death certificate and a lot of times the medical examiner is going to be involved because this is an unnatural death,
Schenk:
though,
Ellerman:
in my experience, when our overworked medical examiners get an elderly patient, Who died of choking.
They’re not doing full autopsies. They may not even be examining, inside the mouth. They’re trusting the third party, the police, the ambulance drivers, and the 911 calls. So they might be creating a death certificate that says choking or what I see a lot is choking on food bolus, but they haven’t performed an autopsy.
Schenk:
Right.
Ellerman:
And defense loves to pick that apart. No autopsy was performed. Obviously. So those are actually the records that are the most meaningful to me. What’s in the medical record the incident reports, what the nurses are reporting happened is never meaningful because we all know that at that point it’s a CYA and it’s not an honest assessment as to what happened in that terrible, horrible moment.
And I’m also looking for what did you have as orders before the choking incident? Did you know the person was mechanical soft? Did dietary know that? Had other nurses served a mechanical soft diet? That kind of thing.
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What are some common ‘defenses’ made in choking cases?
Schenk:
What about, speaking of the, what defense loves with that, what are some of the common defenses in choking cases that you see?
Like what is the facility saying in response to your claim that they were negligent in causing this choking?
Ellerman:
Cardiac arrest. Cardiac arrest. That person it’s interesting. It’s called a cafe coronary is the sort of the silly term that pathologists will use when your heart stops because you’re choking and it’s cardiac arrest based on respiratory arrest.
But what the defense in these cases has always been in all of my cases is. Nope. They didn’t choke. The food had nothing to do with it. The timing of the meal had nothing to do with it. It was spontaneous cardiac arrest. And that’s why they stopped breathing.
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Schenk:
And so typically I guess for any family member that might be listening to this that’s, obviously grieving and has questions like.
Is an, is a is an autopsy, do you have to have an autopsy to defeat that type of argument? Because like, how do we know? I don’t think so.
Ellerman:
Yeah, great question. I don’t think so. If the nurse says on the 9 1 1 call, she was eating lunch and started choking, I don’t think you need an autopsy.
If the ME has a conversation with the ambulance driver and the me is told by the ambulance driver, we found vomit on her. We suctioned her. We found a large. food bolus when we suctioned her, I don’t think you need an autopsy. If you don’t have those third party independent records though, then I think you would need an autopsy.
And if that’s too late by the time I get called, the loved one has been mourned and buried and that kind of thing. Yeah. I’ve never had an autopsy in one of these cases, but I have always had the third party records. I’ve even had body cam footage in some cases because if the police show up, they’re interviewing witnesses and they’re wearing body cams these days.
And that’s helpful stuff.
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Schenk:
What is the presence of vomit telling you?
Ellerman:
Interesting. A small amount of vomit is different than a large amount of vomit. There is medical literature out there that says that somebody who is being CPR, if CPR is being given, that they could vomit because of CPR. It’s the size of the vomit.
It’s the type of vomit. It’s also the timing of the vomit. And I hate to be so gruesome, but if you walk into the room and someone who was eating alone as a small amount of vomit on them, that’s different than by the time they get to the hospital, they have vomit on them because that could be from the CPR or the paddles or some sort of resuscitation event.
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So the size, if it looks like bile or if it more likely if you’re choking, it’s going to be bile. So it depends on color, size, and timing of vomit, which is a horrible thing to talk about, but in the medical literature, it’s pretty clear.
Schenk:
What does the presence or absence of a DNR due to a choking case in your experience?
Ellerman:
I filed those motions to keep the DNR out, weeks before trial because and my argument is always just because someone didn’t want to be intimated didn’t mean they didn’t want to be served the correct meal. And that there is a difference. And I will tell you, I think that is a real point of judicial controversy difference.
I think a court could go either way on that. I’m afraid to tell you that, having. have written those motions. I settled the case before I got the court’s order on that. But I think it’s a tough area. I think it’s a really tough area. I think also the independent DNR. What is the DNR actually say?
In one case I had, though, when the ambulance arrived, the first question they asked was, is this person a DNR? And then they didn’t suction them, and then they didn’t do anything.
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Schenk:
And so that’s the thing, and because I’ve had some cases where that was the issue, the person is in distress and they don’t do anything because he’s DNR and it’s no, that’s not what a DNR is for.
Ellerman:
It’s like this. If you put it in another context, if there’s a hurricane coming towards the nursing home, DNR stay here? Of course not. You move them to prevent the harm that is preventable. And if an ambulance shows up and there is, a little bit of food lodged, three centimeters, it’s easy to get out.
People can breathe suctioning Heimlich. You do the Heimlich on someone who’s a DNR. You suction someone who’s a DNR. These are not life Sustaining measures, right? These are just, let’s get the bad thing out of the way. So it’s complicated. I think it depends on the case, but I hear that excuse all the time. Oh, she was doing one. So we didn’t do anything.
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Schenk:
I was going to say, that’s an amazing analogy. I hadn’t heard that before about the hurricane. That’s really great.
Ellerman:
I’ll save it for my next brief, but,
Schenk:
What are some other things that you might consider strategy wise?
When you take a choking case, like what are some things that I understand you want the third party records, but what are some other just general things that you might be looking at or using in terms of argument or strategy?
Ellerman:
One thing that I think is interesting is that, when family members Who are loved and supported or in these long term care facilities They’re not just eating food prepared by the facility, right?
Because we all know the facility food’s horrible So if you love someone, I you know, I live in virginia. You live in the south. You love people with food That’s how we do it So i’ve been weary of cases where someone will call me and say My mom was on a mechanical soft diet at the nursing home But I was bringing her ham sandwiches for the last three years And she could eat those ham sandwiches just fine.
And so I’d have to say to that person, Okay, but then I can’t take your case. Because if the evidence is going to be, for the last four years, mom was safely chewing, swallowing ham sandwiches on her own, then I don’t think we can prove that this incident of negligence is what caused the choking. And that is a real issue, because you hear families all the time trying to cheat on these diets.
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Because being on soft mechanical diets sucks. Being on thin liquids is no fun. Who wants to have nectar thickened coffee in the morning?
Schenk:
I don’t want to have that.
Ellerman:
I think that to me is a real kind of red flag. And you can say, were they negligent? Maybe. Did they violate the order? Maybe. Can I prove that this one incident is what caused it?
Probably not if you’ve been, sick. Serving her pie and ham sandwiches and mellow yellow for the last three years.
Schenk:
I get that so much. Send me some pictures of your mother and the, and it’s always they’ve got like McDonald’s Popeye’s chicken, like all around them.
It’s ah, okay. Hey, look like, You got to respect that, that they want to eat and stuff, but at the same time, that’s, it’s a detriment to the case, as you mentioned
Ellerman:
It is, and you and I probably take cases the same. I, my integrity matters and my case integrity matters, and I can’t take a case where I know that if the other side asks the right questions, we lose.
Schenk:
No I’m 100%. I don’t
Ellerman:
take those cases because it doesn’t benefit the families. It doesn’t benefit justice. You, then you just say to the family, then this is a tragedy and I’m so sorry.
Schenk:
Yeah.
Ellerman:
It is a tragedy, but it could have been the Popeyes you gave her yesterday. It may not have been what the facility gave her today. And I don’t know.
Schenk:
Yeah, exactly. Okay. So I guess the final question I have for you is is there a particular. What is your type of choking case that you see more often than not? In other words somebody is left with a plate in front of them and they gobble it down without anybody observing them, things like that.
What’s something that you see a little bit more often than not?
Ellerman:
What I’m seeing almost in all of my choking cases is that the person is new to the facility. And so that is the common thread I’m seeing, whether, they were just moved from normal assisted living into memory care or memory care into nursing home, or they were just there for a little while, because that’s where the breakdown in communication is the nurse who didn’t read the chart, the nurse who didn’t have time to look at the chart, the dietary, you didn’t have time to instill the order.
So that’s the number one common thread I’m seeing beyond that. I don’t, and everyone who has a swallowing issue has some independent medical diagnosis. Beyond usually just dementia, because there are plenty of people with dementia who know muscle memory. They know how to eat and drink. So those are, I think the common thread I’m seeing is it’s that first couple weeks in the facility that are the scariest.
Schenk:
That’s interesting because like for me that, the facility is not omnipotent, right? And they receive a resident, they have a certain amount of time to observe and to assess. And so like in a fall case, I’m not saying you get a free fall, but there is an amount of time that they need to observe somebody and figure out how they need to take care of them.
And I feel like that’s a strong argument in a case where there’s the choking occurs. Within the first few days or the first week is they have a strong argument that, Hey, we’re still in the process of observing this person.
Ellerman:
Great question. And so I should put a vast an asterisk next to my comment. It’s somebody with a known preexisting risk.
So either Parkinson’s or multiple sclerosis or a swallowing problem, who’s then put into a facility for the first time, that’s the, cause I agree with you. If I if a woman who’s 85 years old, who’s just had a hip fracture. Who without any preexisting issue was swallowing comes into a facility and she chokes to death.
I don’t think that’s negligence. Now, if you were at the hospital and they noticed that she had lost weight and they did a swallowing study on her and the hospital recognized that she had a stricture or some sort of esophageal cancer and a tumor, and therefore she couldn’t swallow. And that record went to the nursing home and they didn’t do a speech therapy order.
Then I do. Cool. I fault them for that.
Ellerman:
So it does have to be based on what they know. And they don’t do routinely swallowing stuff. Everyone who comes into the nursing home does not get assessed on swallowing. The way they do fall risk and Braden score for pressure ulcers and that kind of thing.
Schenk:
That makes sense. Lauren, this is flown by, I really appreciate you coming on the show and sharing your knowledge with us.
Ellerman:
Thank you so much. I appreciate the invite.
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