It can be a speech-language pathologist's worst nightmare. You are being sued for malpractice in the death of a dysphagia patient. High-powered attorneys have brought suit against you, the patient's primary care physician, other rehabilitative, medical, and nursing personnel, and several medical facilities. Copies of the patient's medical records have been sent to attorneys who will prosecute this case on behalf of the deceased patient's survivors and estate. You have been subpoenaed to provide a deposition, and you may have to testify before a judge and jury.

Although emotions run high at this time, and you are understandably upset, knowledge of the investigative process in these matters can bring some perspective and comfort.

Medical malpractice cases involving SLPs and the management of patients with sucking, chewing, and swallowing disorders are increasingly common (Tanner & Guzzino, 2002). According to Wright (2004), nursing home medical malpractice litigation often includes dysphagia management issues and some attorneys are concentrating on this legal sector. Logemann (1995) and others note that in nursing homes, as many as 50% of the residents may have sucking, chewing, and/or swallowing disorders. With SLPs assuming a primary role in the evaluation and treatment of infants, children, and adults with swallowing and feeding disorders (ASHA, 2001), clinicians may face legal responsibilities and implications.

SLPs are rarely sued independently for dysphagia malpractice. Usually, they are named in suits that also include physicians, hospitals, nursing homes, and home health agencies. Although there may be some comfort in knowing that you are not accused of being the sole professional responsible for the alleged negative dysphagia management outcome, the chain of events leading to the death of the patient will be reconstructed, and your role will be examined in great detail.

The Expert Witness

The initial dysphagia malpractice investigation is usually conducted by an expert witness, often a professor or a speech and hearing scientist who also has extensive clinical experience, who is retained by the plaintiff's attorney. Medical malpractice cases often boil down to a battle of experts giving expert opinions about who did what, when, and where, and the probable clinical outcome. Attorneys retain experts who have the highest credentials and whose testimony is likely not to be impeached (challenged).

Other malpractice expert witnesses are also retained to provide relevant opinions about the patient's dysphagia management. Of particular importance are medical pathologists who may confirm the presence of infiltrates in the patient's lung or lungs at autopsy. Although expert witnesses provide educated opinions about the case, they are not the judges and juries who ultimately determine innocence, guilt, damages, and compensation.

The Investigative Process 

The expert witness will prepare a timeline of events to show what the health care professionals did concerning dysphagia diagnosis and treatment, and their role in the alleged malpractice. The expert creates the timeline by examining extensive amounts of medical information, usually several large boxes from different medical facilities. It is likely that the alleged dysphagia malpractice occurred several years earlier, so the medical records are critical in constructing the timeline.

All records regarding the patient are reviewed including referrals and orders, bedside evaluation reports, progress notes, video swallow studies, and communications with the patient, the patient's family, and other health care professionals. Each page is stamped with a number for easy reference during conferences, depositions, and trials. Once the timeline is created, the expert witness and the attorney confer about the important legal issues and merits of the case.

Your clinical notes and reports become the primary evidence of your professional conduct and show your culpability, if any, in the negative dysphagia management outcome. The expert witness investigates any commissions or omissions that may have resulted in, or contributed to, the patient's death. Of course, the attorney defending you and other professionals involved are reviewing the same medical records to create a defensible position about your professional conduct.

Standards of Professional Conduct

An important part of the expert witness' opinion about your role in the case is whether you fell below current, accepted, and general standards of professional conduct, and what were the negative clinical outcomes, if any. (ASHA documents 1990, 2000, 2001, and 2002 provide knowledge and skills needed by SLPs in providing services to dysphagia patients.) Forming opinions about relative standards of professional conduct for each aspect of dysphagia management is the most difficult aspect of the expert's investigation and  opinion. It involves more than second-guessing with the benefit of hindsight. The process involves assessing appropriateness of the clinical action given the available information and what a prudent and proficient clinician would do under similar circumstances.

The Video Swallow Study

The video swallow study (VSS) plays a pivotal role in most dysphagia malpractice cases. While the bedside dysphagia evaluation can provide important information about oral motor and sensory function, it is limited in its utility to confirm or reject aspiration. Although there are other instrumental evaluations of the swallow, only the VSS has the general and accepted capability to show aspiration.

However, too often the VSS is recommended reluctantly, and sometimes clinicians ignore or disregard the results because conflicting bedside evaluation results suggest normal swallowing functions. Daniels and colleagues (1997) found several factors predicting the severity of dysphagia. Dysphonia, dysarthria, abnormal volitional cough, abnormal gag reflex, abnormal cough reflex, cough after swallow, and voice change had predictive value in determining the severity of dysphagia and the need for instrumental examination.

In some medical facilities, the VSS is deemed too expensive, inconvenient to schedule, and unnecessary. The costs range from $400 to $1,200 or more per procedure including transportation to hospital radiology departments. Nonetheless, it is generally accepted as the most accurate measure of the dynamic swallow. During trials and depositions, lawyers, judges, and juries rely on visual evidence of swallowing disorders as opposed to bedside evaluation clinical assumptions. "Neglecting to conduct an instrumental evaluation of the swallow in cases of suspected dysphagia is analogous to refusing to X-ray a leg for suspected fractures" (Tanner, 2003, p. 86).

Of course, even the VSS can provide false positive and negative results, but it is the clinical standard by which choking and aspiration risks are assessed. It is also the definitive test for the important recommendation that a patient should be placed on NPO (nothing provided orally) status. A timely, clear, and concise recommendation for a VSS can show that you exercised prudent clinical judgment in the dysphagia case. Whether others followed your recommendation is a separate investigative and litigation issue.

Summary

Although it can be distressing personally and professionally to be named in a dysphagia medical malpractice suit, there are certain clinical actions that you can take to minimize your responsibility in a negative dysphagia management outcome. Understanding the investigative process and some of the issues that may arise in litigation, can help you positively structure your professional conduct and show that you performed at or above current, accepted, and general standards of the profession in your dysphagia management.

People make mistakes, but by considering the forensic aspects of dysphagia and the investigation of medical malpractice, any mistakes can be minimized.

Dennis C. Tanner is professor of health sciences in the Speech-Language Sciences and Technology Program at Northern Arizona University in Flagstaff. He has served as an expert witness in several cases involving dysphagia malpractice. Contact him by e-mail at dennis.tanner@nau.edu.  

Acknowledgement

The author wishes to thank Jody M. Tanner and Stephanie S. Cotton for their assistance in the preparation of this article. Appreciation is also extended to Micheal Wright, Esq., Attorney at Law, for helping clarify the legal parameters of dysphagia litigation.