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This entry was posted on December 1, 2012.
A Windsor woman whose father died from choking on his food just days after moving into a long-term care home has launched a $6-million lawsuit alleging wrongful death and a cover-up by the home’s staff.
“His death was needless,” said Lisa Joseph, whose 80-year-old father Michael Joseph had spent barely two days at Heron Terrace Long Term Care Community in Windsor before he was hospitalized after choking and died. He was mistakenly served solid rather than pureed food even though the home knew he was at high risk of choking if he ate solid food, Joseph said.
“It’s absolutely ridiculous to say he died because of a lack of communication process,” Joseph said, referring to the findings in a Ministry of Health inspection report following the death. When her father moved in, his transfer records had all of his care instructions on them, she said, including a big label that explicitly stated he could not have solid food.
Her father had dementia, which can cause swallowing problems, and her father had to stop wearing his dentures, she said.
Joseph, who is trained as a social worker, said she’s bound by a professional responsibility to make sure a death like this doesn’t happen again. “There needs to be change,” she said, adding that the long-term care home, the Community Care Access Centre and the ministry have to be subject to more public scrutiny.
Joseph said she hopes the lawsuit will set a legal precedent in Ontario and make nursing homes use wristbands, like in hospitals, to clearly communicate to staff what patients can eat, what medication they take and their particular care needs. In Ontario hospitals, staff constantly check patients’ wristbands before doing anything — drawing blood, serving meals, taking X-rays — to avoid any errors. “They never just wing it,” she said.
Homes should also think about using clear signs with care instructions at the head and foot of residents’ beds, she said. Nursing home workers can’t rely just on memory to know each residents’ needs, she said, especially since more and more long-term care residents have complex health problems and many cannot communicate properly.
Joseph’s father moved in to Heron Terrace on November 22, 2011. He died in hospital three days later.
In its inspection report dated Dec. 15, 2011, a Ministry of Health inspector found the home’s staff “did not consult information regarding resident diets and special needs during food service.” As well, the inspector reported that “information regarding orders for a resident were not communicated accurately, resulting in an error in the resident’s care.”
The home was ordered to immediately “ensure that all orders for residents on admission are communicated to all departments and processes in place to ensure that the orders are implemented accurately.” The home was also instructed to voluntarily implement a correction plan to make sure the food service workers know of residents’ dietary needs.
There is no mention of a resident death in the inspection report.
“The ministry order doesn’t go far enough,” Joseph’s lawyer Maia Bent told The Star. “In our opinion, this is not adequate…. It minimizes it, which is offensive, really, when you’re dealing with a wrongful death.”
According to the statement of claim, the home failed to adhere to Michael Joseph’s dietary needs when it knew that failure to do so would likely cause him harm. The claim also alleges Heron Terrace delayed the proper medical care, failed to maintain or properly complete the records of his health condition and improperly altered medical records. It further alleges the home withheld information about the choking incident to emergency workers, thereby failing to ensure the health care providers had sufficient information to properly treat Michael Joseph.
The statement of claim for the lawsuit was filed two weeks ago. Lisa Joseph and the estate of her father are seeking damages for breach of contract and breach of fiduciary duty as well as punitive damages.
Bent said that it often takes large damage awards to shake the system up and make it change.
Heron Terrace and its owner, S&R Nursing Homes, have not yet filed a statement of defence. The allegations have not yet been tested in court.
In a letter to The Star, John Scotland, CEO of S&R Nursing Homes Ltd., said the company cannot comment on the specifics of the incident for privacy reasons “other than to say how deeply we regret any part our home may have had in contributing to the complications leading to his death.
“We take the care and safety of each of those residents entrusted to us very seriously. Our policies, training and support are meant to ensure that not only are our residents well cared for, but that they are treated with the dignity and respect that is due them.”
Following the incident, Scotland said in the letter, the home reviewed its policies and implemented “additional communication requirements” to identify residents’ specific needs. The home is also continuously auditing those processes to make sure they achieve their intended purpose, he said.
“We did not know this resident or his family well as they were only in our care a few short days. Our hearts and sympathies do however go out to them as they struggle with their loss.”
Michael Joseph had spent years in and out of residence at Rose Garden Villa, another Windsor long-term care home, while his wife lived independently nearby. In the spring of 2011 she died, so his daughter started looking for a long-term care home for her father that was closer to her own. The Community Care Access Centre was able to secure a spot for Joseph’s father at Heron Terrace within days.
“I went over his transfer records for an hour and three quarters with the nurse,” Joseph said. The statement of claim states the home received records relating to his health and dietary needs and that Joseph met with the personnel and reviewed the records thoroughly.
The next day, Joseph stopped in to see her father at dinner. “When I got to his side I saw that he was being served whole Brussel sprouts, whole sausage and hash browns and he was choking,” she said.
According to the statement of claim, Heron Terrace personnel observed the incident and did nothing to help. Joseph and her fiancee repeatedly asked for help, the claim states, but were ignored.
Her father rushed back to his room wretching and vomiting on the way and then collapsed on his bed. Despite Joseph’s concerns, the statement of claim reads, the personnel advised that her father was sleeping, was stable and that Joseph and her fiancee should go home.
According to the statement of claim, Heron Terrace failed to record the choking incident.
The following morning, her father was taken to hospital after having been found “with a blue colour to his skin and a significantly reduced oxygen level.” The statement of claim alleges Heron Terrace failed to disclose the choking incident to emergency personnel.
Even though her father had dementia, he understood what was happening to him, Joseph said. Her father’s X-rays showed he had food lodged in his lungs, she said.
“He was begging me,” she said, her voice cracking. He kept asking her to take him off life support. Finally she did, Joseph said. “I was in shock. I wanted answers.”
Joseph’s statement of claim alleges that Heron Terrace initially denied the choking incident and then denied being advised of her father’s dietary restrictions.
Joseph called the police, too, and an autopsy was ordered to confirm the cause of death. Officers took Michael Joseph’s embalmed body from the funeral home to London, Ont., for the autopsy, delaying the cremation, she said. Homicide investigators worked on the case for months, but finally a detective told her the police and Crown couldn’t identify a person or entity to hold responsible for the death, Joseph said.
Regardless, Joseph said, Heron Terrace had a fiduciary duty to care properly for her father, and they failed in that.
A spokesman for the ministry said it is not considering wristbands for dietary restrictions. “There already exists in legislation requirements to ensure dietary restrictions are followed,” he said. The Long Term Care Homes Act requires residents receive food that is safe.
Joseph said the guilt she feels about what happened is unimaginable. She moved her father to Heron Terrace so they could be closer together. He even thanked her for moving him to such a nice home, she said, crying.
“There’s no closure because I feel like I’ve failed so bad,” Joseph said. The ministry report doesn’t even acknowledge someone died because of the home’s mistake, she said. “How are we supposed to implement change when it’s soft-soaped to look like a communication error?”
The home’s insurer contacted her father’s lawyer about a possible settlement, Joseph said, but accepting money won’t bring about any concrete change in the system.
She’s even started drafting a lengthy letter to the chief coroner of Ontario to request an inquest into her father’s death — and potentially similar cases — and to determine whether wrist bands or other tools could help stop these accidents from happening again.
Her father’s case is just one of many, Joseph said, so she’s determined to fight.”I can’t give up and I don’t intend to give up.”
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