Proving Negligence in Aspiration Pneumonia Cases

When does aspiration pneumonia become evidence of nursing home negligence? These cases often involve missed warning signs, poor supervision, or failures in care planning. Determining what happened requires a close look at the resident’s care and condition. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes guest Rachel Barrett to talk about how attorneys prove negligence in aspiration pneumonia cases.

Schenk: 

A resident coughs during dinner. A few days later, they’re in the hospital. What happened? I’m attorney Rob Schenk. This is the Justice for Residents podcast, and this week Rachel Barrett joins us to discuss aspiration pneumonia, what it is, how nursing homes can prevent it, and when treatment matters the most, and how to build that case for a jury.

Rachel’s won some of the largest medical malpractice verdicts in the history of the state of Minnesota, and she’s here to explain the science. Stick around

Intro

Schenk: 

We be jammin’, mon. We be jammin’. That’s okay. That’s good… I like that one. I like that one. Veering away from truck ads and into island life, so I dig that. Today, folks, an excellent episode talking to Rachel Barrett about aspiration pneumonia and bringing those types of cases. I think that if you wanna know more about the medicine, about the science underlying aspiration pneumonia, I would highly suggest for your homework for this episode for you to check out episode 125 with when I talked to Dr. Susan Langmore about Aspiration Pneumonia, as well as episode 197 when I talked to Dianne McAdams-Jones. Both of them are very knowledgeable about aspiration pneumonia. 

Additional discussion of risk factors, prevention measures, and liability issues in nursing homes is available in Aspiration Pneumonia in Nursing Homes (Episode 125). 

So those are a couple of excellent episodes that I would say check out. This episode, the conversation’s more about the legal side, about bringing the case, like how the cases are framed, what we’re looking out for, documents, that kind of thing.

For further insight into the recognition, investigation, and litigation of aspiration pneumonia cases, see Episode 197: Aspiration Pneumonia in Nursing Homes. 

Guest Intro

Schenk: 

All right, let’s get into the Salisbury steak and mashed potatoes of the episode. Rachel Barrett is a partner with the Minneapolis law firm Ciresi Conlin LLP, where she spearheads the nursing home abuse practice. Rachel has spent her entire legal career representing individuals up against powerful institutions.

Before she was a plaintiff’s lawyer fighting health systems and elder care corporations, she was a Minneapolis public defender, and we’re so happy to have her on the show. 

What Is the Difference Between Aspiration and Choking?

Schenk: 

Rachel, right off the bat, hopefully this is a softball question, but can you tell us the difference between aspiration and the act of choking?

Barrett: 

Sure. So first off, this is a difference that should be really important to all practitioners of nursing home litigation, but it’s really the difference between a blockage issue and a wrong pipe issue. With choking, some kind of foreign object or a piece of food gets stuck in the esophagus, whereas with aspiration, you’ve got some substance that’s not air and oxygen that goes down the airway, the trachea.

And it’s, for lack of a better word, not good. So with aspiration, a physiological response to this foreign substance being ingested in the airway that causes this cascade of physical symptoms and consequences that are potentially very harmful to folks in long-term care. 

Schenk: 

I feel like in cases like a UTI, where there is a certain amount of evidence that an individual perhaps has been sitting in soiled clothing, soiled linens, m- maybe there’s evidence that maybe catheter maintenance has not been going on hygienically that, that type of, those type of evidentiary bricks build the house of a UTI case.

What Are the Early Warning Signs of Aspiration Pneumonia?

Schenk:

With respect to aspiration pneumonia, how, what are some of the bricks that you build for your case? 

Barrett: 

Sure. So I would say you’re right to distinguish UTI from aspiration pneumonia because it’s a, this disease that kind of sneaks up on care providers, right? And so that’s why the front end of protecting people from it is so important, because it happens and develops so quickly.

But I would say the first telltale signs of aspiration pneumonia are dropping oxygen saturations, changes in breathing sounds, more clinical observations that people on the ground, nurses and aides, should be observing and documenting, and so it really should be in the chart. 

When Must Facilities Implement Aspiration Precautions?

Schenk: 

And with respect to that I would imagine that the interventions involved in preventing aspiration and as a consequence, aspiration pneumonia, is that something that should be flagged at the beginning?

Like in other words this is where one of these things where I ask the question, it takes me 10 minutes, but not everyone, I assume, is a risk, is the same risk for aspiration pneumonia. Is this something that should be assessed at the beginning? 

Barrett: 

I think you’re absolutely right to say that not everyone is at the same risk, but I would argue that almost everybody in a long-term care facility is at risk for aspiration pneumonia, more so than the general population.

But yeah, certain conditions will absolutely predispose somebody to being a greater risk, like swallowing issues, like respiratory conditions that they bring to the facility, like other weakness in their throat muscles, and eating issues. And so there’s lots of ways to flag for those folks who are at higher risk that you can tie to increased precautions that should be taken by the care providers.

What MDS Items Signal Known Aspiration Risk?

Schenk: 

If you have a client, a resident, aspiration pneumonia, negative outcomes from that, and they come to your office, what are some of the documents within their record that you’re going to wanna go to first, and why? 

Barrett: 

I would say that I think we’d first look at the MDS, right? Look at what the swallowing documentation says about their kind of preexisting status before the event.

We’re also looking at the specific care plan, and I’m referring to the entire chart because you, as a good practitioner, are gonna order the whole chart, right? But I’d look at the day-to-day observations of vitals, right? Look at mealtime supervision and all of the kind of tangential observations around swallowing, anything that’s happening regularly.

Which Experts Are Needed for an Aspiration Pneumonia Case?

Schenk: 

And I guess once you identify that And you’re still in the evaluation of the case. Are you going to a particular type of expert to back that up? Or how, what’s the, what will be the process in which you begin to think about explaining this to the jury in terms of a causation component?

Barrett: 

For sure. I think I’d work my way backwards, right? Right away I’d probably think of having a standard care expert involved, and it’s probably gonna be a nurse with some kind of experience managing a facility. Because I want to know not only what was the appropriate intervention, but am I gonna have support to argue that intervention should have been taken, and was it available at this facility?

Because the circumstances are so important. But at the same time, I probably want to get an internist or a hospital, an ER doctor to say, had they detected it this was solvable with IV antibiotics had that person been brought to the emergency room. 

For a comprehensive medical overview of aspiration-related lung injury and associated complications, see NCBI StatPearls: Aspiration Pneumonia. 

Schenk: 

I would say in a case like this where you have aspiration pneumonia the causation argument is gonna be the most difficult argument but I guess causation is oftentimes the most difficult argument to make, right?

What’s some of the pushback that you get with respect to causation? What is the nursing home saying actually happened? 

Barrett: 

The nursing home is gonna say, “We had no idea that this person was at such risk. And they were not in the greatest of health, and unfortunately we can’t prevent all aspiration incidents, and this person was ill, and by the time we realized it, we weren’t able to do anything about it.”

I think we’ve probably all heard that plenty of times. But my causation response is the sooner you know that this person has aspiration pneumonia, the sooner you are down the path of getting them the IV antibiotics that are gonna be the solution. And even if it’s 24 hours, that’s a long time 

Schenk: 

So it’s almost like it’s broken up into two components. You have the prevention, and then perhaps once the resident is symptomatic, that starts a clock, right? 

Barrett: 

Totally. 

How Do You Link Aspiration Events to Care Failures?

Schenk: 

Tell me about some of the theories or ways that you attack that first component, which is prevention. 

Barrett: 

So like I said I think that most folks in a nursing home are at increased risk for aspiration pneumonia.

And so in general, the kind of preventative measures that you’d expect to see for folks with swallowing issues is gonna be a lot of aspects of care surrounding mealtime and ingestion of liquids. So that means supervision with meals. Sometimes it means positioning during meals. Hopefully they’re able to eat in the dining room.

If they’re not, they have a specific angle that’s dictated for their providers that they need to be eating at, if it’s, if they’re taking meals in bed or sitting down. And then there’s specific dietary restrictions. And so we wanna see that somebody’s been assessed, and that those assessments are in the chart, they’re clearly communicated to the providers that are then performing those responsibilities, and that it’s documented that those are actually being provided.

Why Is Aspiration Pneumonia Considered a Medical Emergency?

Schenk: 

And kinda same question, but for afterwards. Once we’re once the resident is symptomatic, talk about the theory and the perspective you take on that. 

Barrett: 

Yeah, so this is probably one of the trickiest cases to pursue, because the defense always has a low-hanging fruit argument of there’s no way to, to heal really sick people who are going to unfortunately perish very quickly.

And so our response is going to be that, when aspiration pneumonia is detected, it’s a medical emergency. Generally, for somebody who’s frail and ill they get to the emergency room, the first intervention is usually IV antibiotics, which are the strongest medications that we can imagine, usually a duo of vancomycin that they get right away, and that’s intravenously.

We know that those medications are absorbed really quickly. And in general, most experts will tell you that you can, even a few hours makes a huge difference with those kinds of medications. So on that second piece of causation, if you’ve got a failure to intervention argument you’re definitely gonna want an internist and an emergency medicine doctor to support your case.

Additional research examining the causes, diagnosis, and outcomes of aspiration pneumonia is available through PubMed: Clinical Research on Aspiration Pneumonia. 

Question of the Week

Schenk: 

All right, wanted to quickly interrupt this interview for the nursing home regulation question of the week. I’m gonna say the difficulty level this week, folks, is gonna be medium. So if you get this right, I want you to imagine that the dirty dishes in the sink are actually clean, okay? Don’t eat off of them.

I’m just giving you permission to not feel guilty about it. If they’re in the sink, they’re clean, don’t worry about it, if you get it right

Under 42 CFR 483.25N, before bed rails may be used, the nursing home is required to A, assess the resident for the risk of entrapment, B, obtain informed consent from the resident or resident’s representative, or C, both A and B

And that answer is C, which means that the nursing home not only has to assess the resident’s risk for entrapment, but they also have to get informed consent from the resident or the resident’s rep. And the reason why is because it’s not common knowledge, but bed rails present a pretty, depending on the resident, a high risk of entrapment.

The resident gets stuck between the mattress and the actual bed rail

What Exactly Is Aspiration Pneumonia?

Schenk:

And what is aspiration pneumonia then? Hopefully not every aspiration event becomes an infection, but we know that when some kind of foreign substance, whether it’s mucus or food or liquid, gets into the airway, we know that it’s carrying usually some kind of bacteria that can quickly in develop into an infection in the air sacs of the lungs because they’re not used to being exposed to anything other than air and oxygen.

Barrett: 

So it really is a buildup, often quick buildup of bacterial growth in the alveoli of the lungs. 

Can Aspiration Pneumonia Occur Without a Witnessed Aspiration Event?

Schenk: 

In your cases, is there typically an aspiration event that you can point to? 

Barrett: 

Oftentimes they’re not apparent because it isn’t observed and that’s unfortunately a difficulty in a lot of nursing home cases.

But there is usually a distinct cliff of changes in vitals and general wellness that we can point to that it certainly happened before. 

Schenk: 

Can you tell me about any experiences or cases in which perhaps the mechanism of the aspiration event is not common? It’s, in my mind, I’m thinking of somebody perhaps they’re not, head of bed 30 degrees, that kind of thing.

Barrett: 

I think what we generally think of when we look at these cases is Ill person ingests something, that’s not observed, and then they hit this, terrible cliff of vitals, and they start to get worse and worse, and they get really sick really quickly because their care plan wasn’t followed with regard to swallowing issues.

Can Failure to Reposition a Resident Cause Aspiration Pneumonia?

Barrett:

So that’s a traditional case that I think of. But in, but I’ve also had cases where a resident had something like a pressure sore, and they needed to be frequently repositioned because of the pressure sore. And because that care wasn’t provided, a resident was left kinda laying flat and actually aspirated on vomit after a meal because she not only wasn’t repositioned, she wasn’t watched.

And so although that wasn’t necessarily a swallowing intervention, it was still a departure from the standard of care that then gave us causation for aspiration pneumonia. 

For an overview of how aspiration pneumonia develops and why it is a significant concern in long-term care settings, refer to What Is Aspiration Pneumonia?. 

Schenk: 

Wow, that’s amazing. I guess in that situation how was she positioned in such a way that happened?

What was… So her care plan had contemplated that she was gonna be rotated onto her side. Oh … every two hours. Okay. And our theory case settled, and so we didn’t have to test this in front of a jury, but our theory was that had she been rotated onto her side as she was supposed to after something like 60 minutes after mealtime she wouldn’t have been in a position to then swallow her vomit, that she would’ve vomited in a, for lack of better words, safe way that wouldn’t have caused her to aspirate on it.

I see. And I guess in that situation, they’re gonna argue something along the lines of “Look, we have to triage what we’re doing.” Do we wanna heal this wound as fast as possible or prevent this… I would imagine they’re gonna argue a very rare risk of aspiration, so I guess you were dealing with that in that particular case.

Clinical guidance on the distinction between aspiration pneumonitis and aspiration pneumonia can be found in Merck Manual: Aspiration Pneumonitis and Pneumonia. 

Barrett: 

Yeah, and I think our response probably would’ve been, “You probably owe her the responsibility of figuring out that she’s at risk for ingesting vomit if you’re not repositioning her appropriately.” 

Schenk: 

That’s right. Rachel, this has been ex- super, super fantastic. I’ve learned a whole lot in such a short time. I really appreciate you coming on the show and sharing your knowledge with us today. 

Barrett: 

It’s such a pleasure. Thanks for having me. 

Schenk: 

Awesome. Folks, I hope that you enjoyed the content of this episode. If you have an idea for a topic you would like for me to talk about, let me know. If you have an idea for somebody you’d like for me to talk to, please let me know that as well.

Be sure to also like and subscribe wherever you get your podcasts from. I’m moving my camera around. There we go. Be sure to like and subscribe wherever you get your podcasts from. What’s the other thing I say? I already said and subscribe. New episodes of the Justice for Residents podcast come out every single Monday, and with that, folks, we’ll see you next time.