Dysphagia 139“For all of the doctor’s surgical skills, he did not stay informed about Mr. Anderson’s
postsurgical recovery. He was negligent in scheduling outpatient office visits. He was negligent in
communicating with the nursing staff and Mr. Anderson’s family. He was negligent in not taking
the time to investigate Mr. Anderson’s dysphagia symptoms even when they were reported to him
on several occasions. And when the doctor fi nally got around to investigating Mr. Anderson’s
dysphagia, he committed the most negligent omission: he ordered an upper GI rather than the
proper video swallow study. The doctor simply did not take the time, nor did he have the training,
to manage Mr. Anderson’s dysphagia.”
Then Martin summarized the alleged medical malpractice of the speech- language pathologist.
“The speech- language pathologist was also negligent in her evaluation when the order fi nally
was written. When she got the referral on Mr. Anderson, she did a bedside screening, missed
many impor tant symptoms of dysphagia, and, most impor tant, did not recommend a video
swallow study. She wrote in the chart and reported to the nurses that several of the patient’s
be hav iors were ‘within normal limits’ when, in fact, she should have written and reported that
she was ‘unable to test’ them. It is true that the order given to her was vague about whether to
do a speech and language evaluation or a dysphagia evaluation. It is true that staff cutbacks had
her doing the work of three clinicians. It is true that during the evaluation, Mr. Anderson may
have had a particularly good day with eating and swallowing. All of these seem like good excuses
for missing Mr. Anderson’s dysphagia, but the real truth is that there was no excuse for her not
performing to the level expected by the American Speech-Language-Hearing Association. There
was no excuse for her not performing to the standards of professional conduct that others in her
profession must meet.”
Martin apologized for how nasty the trial had become and said he appreciated that the jury
might have sympathy for the defendants. He said he, too, had sympathy for them. However, he also
had sympathy for Mr. Anderson’s family. And although Albert Anderson could not be pres ent to
testify on his own behalf, Martin said that the jury had an obligation to him that far exceeded the
sympathy they might have for the defendants. Albert Anderson trusted the medical establishment
to provide the level of care he required and assumed that all of the professionals would perform
to reasonable professional standards. “What you must decide is whether Albert Anderson was
properly treated for his dysphagia, and a just verdict can only be for the plaintiffs. We have clearly
shown that the nursing home, doctor, and therapist, for what ever reasons, did not perform to the
levels expected of them, and their malpractice directly caused the premature demise of Mr. Albert
Anderson.” Martin concluded the summation with a plea to the jury: “You owe it to the memory
of Mr. Anderson, to his family, and to future patients with dysphagia to do the right thing. You
must find for the plaintiffs and award the punitive damages that will help prevent future medical
travesties like the one that resulted in the death of Mr. Albert Anderson.”