138 Chapter 7
Case Study 7-1: Litigation Regarding the
Misdiagnosis of Dysphagia in a 72- Year- Old Man
Martin, the plaintiff ’s attorney, walked toward the jury box and began the summation. The
four men and eight women would deliberate for hours, and possibly days, to reach a verdict about
the death of Albert Anderson. After 2 weeks of trial and nearly 3 years of preparation, they would
decide how much money, if any, the doctor, nursing home, and therapist should pay his family for
the loss of their beloved father, brother, and husband. The attorney, who specialized in medical
malpractice law, knew that the summation was the concluding and impor tant part of his pre sen ta-
tion to the jury. He began the summation with a review of the plaintiff ’s case.
“During the past 2 weeks, we have provided you with a timeline of events that led to the death
of Albert Anderson. We have clearly shown that the untimely and tragic death of Mr. Anderson
was the result of an uncaring and arrogant nursing home, a physician who did not keep current
on postsurgical care of his patient, and a speech therapist who performed a swallowing evaluation
that was below the standards of her profession.” Martin continued, “Soon you will be required to
make the impor tant decisions about this case. You will decide whether the nursing home, doctor,
and therapist were negligent in their professional conduct, and whether there is a preponderance
of evidence that their be hav iors led to his death. If you believe the evidence and testimony we have
presented, you will also be required to determine the monetary amount to be awarded the family.”
Martin then placed his hands on the railing of the jury box and said in a soft voice, “Of course,
the monetary judgment will not return Mr. Anderson to the living, nor will it fill the void of his
passing for his family. If any good is to come from this trial, the award will likely prevent future
sloppy medical decisions and perhaps spare the lives of other patients. It will also be a small symbol
for the family to help them resolve their grief.”
The courtroom was silent as Martin continued his summation. “Palo Verde Eldercare, the
nursing home that professed to have the skill and ability to care for Mr. Anderson, is guilty of
neglect that directly contributed to his wrongful death. We have shown that the doctors, nurses,
therapists, and aides, although well intentioned, were too busy to take care of Mr. Anderson’s
special dietary needs. There were too few medical professionals, with too little training in
dysphagia, and poor communication among them. Mr. Anderson displayed many of the signs
of dysphagia: a gurgle in his chest, spiked temperature, anxiety associated with eating, dramatic
weight loss, and even an x- ray showing infiltrates in his lungs. Several times, his daughter told the
authorities that her father’s ability to eat was impaired. Yet, for several months, not one medical
professional associated with the nursing home saw fit to inform his doctor. Albert was fed a regular
diet that was clearly inappropriate for him, and no one saw the signs that deadly bacteria- laden
food particles were being aspirated. They even ignored his allergy to milk products. Because of
the nursing home’s desire for profit, it did not provide an adequate number of professionals, a
protocol for proper communication among them, and proper in- service training about dysphagia
and related eating disorders. The nursing home gladly accepted Mr. Anderson’s money for his care
but not the responsibility for his swallowing disorder.”
Martin then pointed to the physician sitting at the defense table. “This doctor is one of the
best heart surgeons in the Southwest. His skilled hands saved Mr. Anderson’s life with the bypass
surgery. He is a well- trained and skilled health care provider, deserving of re spect and a respectable
income. But people make mistakes, and when physicians make them, they can be deadly.