This Q&A is designed to provide attorneys with clear, authoritative guidance on the key clinical, ethical, and legal complexities involved in choking and aspiration litigation.

Developed by George Barnes, MS, CCC-SLP, BCS-S, a Board Certified Specialist in Swallowing and Swallowing Disorders, this guide addresses crucial concepts in dysphagia management that help guide the standard of care.

Use this resource to immediately identify critical lines of discovery for both plaintiff and defense strategies.

1. What is the essential role of the Speech-Language Pathologist (SLP) in these cases?

The SLP is the recognized clinical expert in dysphagia (swallowing disorders). Decisions made by other professionals without or against the guidance of an SLP may constitute a breach of the standard of care.

2. What is the "standard of care" regarding diet decisions?

The standard of care relies on following the SLP's specific recommendations for diet consistency, feeding protocols, and the use of compensatory strategies. A key strategy in discovery is to determine whether the facility followed these specific recommendations.

3. Is aspiration alone enough to cause aspiration pneumonia (AP)?

No. Aspiration is necessary, not sufficient, for AP. AP requires three simultaneous factors: Aspiration, a high bacterial load (the 'why' it causes infection), and poor host immunity (the patient's inability to fight the infection).

4. What is often the primary source of infection in AP?

The focus on the prescribed diet often misses the primary source. AP is frequently caused by the aspiration of oral secretions, including saliva with a high bacterial load, rather than by food or liquid.

5. What area of discovery is critical besides the patient's prescribed diet and SLP recommendations?

Discovery should primarily focus on oral hygiene/care protocols (dental status, toothbrushing frequency), as the bacterial load in saliva is a frequent cause of infection. Furthermore, it is crucial to review staff supervision, patient alertness, and the timing of sedating medications.

6. How does a patient's condition or medication affect risk management?

Risk is multifactorial. Swallowing function changes daily in response to alertness, fatigue, and illness (e.g., urinary tract infection (UTI)). Key discovery involves searching for documentation of any acute infections, new medications, or changes in alertness in the days leading up to an incident.

7. What is the 'gold standard' for assessing aspiration risk?

The gold standard is an instrumental swallowing evaluation. These include an MBSS/VFSS (Modified Barium Swallow Study/Videofluoroscopic Swallowing Study) or a FEES (Flexible Endoscopic Evaluation of Swallowing).

8. What is the legal argument if an instrumental evaluation was not performed?

The Plaintiff Strategy is to argue that the risk was not adequately assessed. The Defense must provide a valid reason for its omission (e.g., the patient was too unstable/lethargic, unable to be transported, or understood the value but still declined).

9. What is the difference between aspiration and penetration?

• Aspiration is food, liquid, or saliva entering the airway below the level of the vocal folds (vocal cords).

• Penetration is food, liquid, or saliva entering the airway above the level of the vocal folds. Penetration is considered less severe than aspiration.

10. What does NPO mean?

NPO is an acronym for "nil per os," meaning "nothing by mouth." It is the most restrictive recommendation, requiring that no food or liquid be provided to the patient.

11. How do patient preferences and values come into play in certain cases?

Ethical principles supporting patient autonomy assert an individual’s right to make choices about their life, even if those choices carry risk. The Patient Self-Determination Act (PSDA) reinforces a patient's right to decline a modified diet or choose a less restrictive diet based on personal preferences.

12. When might a patient's autonomy be violated?

The plaintiff’s strategy may be to argue a violation of autonomy if the patient's preference was overridden without documentation of medical necessity and the patient's consent. On the other hand, if a patient chooses to remain on a “higher-risk diet,” the facility should provide evidence of a discussion of the risks and benefits with the patient or responsible party.