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  Neglecting to follow a patient’s care plan is malpractice for which a nursing facility can be held liable for payment of damages. UNITED STATES DISTRICT COURT MASSACHUSETTS February 27, 2018

  The patient was transferred to the nursing home from another nursing home when she developed swallowing difficulties for which the first nursing home’s staff concluded they could no longer provide sufficient care.  The new nursing home accepted her for a two-week trial period, then admitted her on a permanent basis.  Her care plan called for pureed foods, supervision with eating and twenty-four hour staffing by licensed nurses.

  A nursing assistant new to the facility gave the resident a chicken sandwich instead of her usual pureed meal.  She immediately began choking.  A nurse tried the Heimlich maneuver unsuccessfully.  The resident died en route to the hospital.  The medical examiner ruled asphyxiation due to aspiration of a food bolus as the cause of death.  

  The US District Court for the District of Massachusetts found grounds for the family’s lawsuit against the nursing home, a facility funded by the US government.   The nurse’s aide in question was not paid by the nursing home, but by a staffing agency with which the nursing home contracted for patient-care staff.  The Court ruled that was not a problem for the family’s lawsuit against the nursing home.  When an agency provides personnel to a healthcare facility, the facility controls and supervises them as if they were the facility’s own.  Under that scenario the law regards the facility and not the agency as the employer for purposes of affixing legal liability.  Pomeroy v. US, 2018 WL 1093501 (D. Mass., February 27, 2018).

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