Case Studies in Dysphagia Malpractice Litigation

Drawing on his experiences as an Expert Witness in numerous medico-legal cases, Dennis Tanner provides an overview of dysphagia and reviews issues that may lead to malpractice litigation. The first part of the book he provides a general overview of the anatomy, physiology, and neurology of sucking, chewing, and swallowing. The three stages of swallowing are detailed including objectives, methods, and procedures of evaluation and treatment. In the second part, he addresses the primary issues in dysphagia malpractice litigation including professional proficiency in dysphagia management, professional communication, the clinical bedside assessment and instrumental swallowing studies, and diet and feeding considerations. Part III comprises a review of dysphagia malpractice litigation issues and the role of the expert witness, and the concluding part provides a comprehensive analysis of five dysphagia malpractice cases and reviews the issues from the plaintiff and defense positions. All five dysphagia cases involve the deaths of the dysphagic patients. FROM THE AUTHOR I have been involved in many legal cases during my thirty-year career in communication sciences and disorders. Although I have served, in some capacity, as an expert witness in cases involving voice disorders, stuttering, birth defects, and other communication disorders, the majority of the litigation concerned dysphagia. With few exceptions, the dysphagia cases involved the deaths of the patients allegedly from choking or aspiration pneumonia. In most of these dysphagia malpractice cases, the plaintiff retained me. These cases involved a lengthy period of forensic investigation, sometimes taking years, and most were settled before going to trial. In all dysphagia cases that were settled out-of-court, I was not apprised of the specific settlement terms. However, the decisions often involved large awards to the plaintiffs from insurance companies representing medical facilities and health care professionals. In every case, my resume and other credentials were made available to all parties involved in the litigation. My credibility in serving as an expert witness comes from my academic credentials, teaching experience and awards, and scholarship in the profession of communication sciences and disorders. Perhaps the most valuable contribution to my credibility as an expert witness is my extensive clinical experience supervising employees and consultants in dysphagia malpractice management or in my direct clinical provision of dysphagia services. This was done through my company, Tanner Rehabilitation Services, Inc., over a twenty-five-year period in which I was involved in the management of hundreds of dysphagia patients at several medical facilities. What you will read in this volume is an overview of swallowing and dysphagia technical information that I consider important and were relevant to many cases of dysphagia malpractice litigation in which I was involved. While there are many books on swallowing and its disorders, and approaches to managing dysphagia, what is provided herein is based on a litigation perspective. While each legal case involving dysphagia management is unique, several issues usually surfaced as pivotal ones and are also discussed. There are also five case studies with analysis of their implications for dysphagia management practices. They are included for illustration purposes and to show the processes and outcomes of actual dysphagia malpractice litigation cases. I understand and appreciate that dysphagia malpractice litigation is a controversial and hotly-contested topic. Some clinicians believe it is an unnecessary intrusion into a health care professional's provision of services by lawyers and the judicial system. Others believe that dysphagia malpractice litigation prevents unnecessary negative outcomes, results in a higher quality of service for all dysphagia patients, and provides just compensation and damages for dysphagia patients and their families who were victims of improper medical management of the disorder. I personally believe the latter while I respect the views of people holding the former opinion. However, the legal system provides for resolution of malpractice litigation based on the rule of law and the opinions of expert witnesses.