News

Congratulations to Steven Hupp and Ronald Margolis for obtaining a Defense Verdict in a Nursing Home wrongful death case tried in Franklin County Common Pleas Court.

Plaintiff’s decedent was a 73-year-old resident who recently had all of her teeth removed to obtain dentures. She was then placed on a mechanical soft diet. A speech pathology consult cleared this resident to eat independently because she demonstrated an ability to understand the appropriate texture of food for her. 

On October 15, 2022, the resident was served ham that was ground to the consistency for a mechanical soft diet. While eating lunch, the resident began choking. The Heimlich maneuver was unsuccessful, and she suffered a cardiac arrest. EMS responded quickly, suctioned numerous pieces of ham from her airway. EMS could not intubate the resident due to the food in her throat. They took her to the Emergency Room. The Emergency Medicine attending physician described numerous small pieces of food above and below her vocal cords but was able to intubate her. After she was pronounced dead, an ER nurse, who acted as a scribe, wrote a note stating: “Unchewed, not ground golf ball size of ham to be found on floor that was removed from patient’s airway.”

Plaintiff claimed that the resident was negligently served ham that was too large to qualify as mechanically soft. The facilities’ cook strenuously denied that she was served ham that was not ground to the correct size. The plaintiff’s expert was an Internal Medicine physician who had not seen patients in nursing homes for the past seven years.

The defense presented experts in Geriatrics and Emergency Medicine/Prehospital Medicine. The E.M. witness was nationally recognized as an expert in airway management. The defense established that patients over age 65 have a seven times greater risk of choking and patients who lack any teeth are at even greater risk of choking. 

During closing argument, plaintiff’s counsel asked the jury for $14 Million dollars on the wrongful death claim and between $10 and $24 Million dollars for the pain and suffering claim.

The jury returned their 8-0 verdict on the claim for negligence after one hour of deliberations. The jury clearly believed that the resident unfortunately choked on properly prepared food.