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Article Excerpt
Dysphagia is a swallowing disorder, and its diagnosis and treatment are the responsibilities of speech-language pathologists. It is frequently an issue in medical malpractice litigation because it can cause aspiration pneumonia and lead to serious medical complications. In this article, dysphagia is defined and there is a discussion of professionals and their responsibilities in its management. The phases and steps in dysphagia malpractice investigation are outlined and several issues in litigation are examined, including clinical timelines, the "possibly-probably" distinction, clinician competency and proficiency, the importance of the videofluorographic swallow study, adequacy of professional communication, clinical documentation, and diagnostic and treatment practices relative to current standards of professional conduct.
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"It is the position of the American Speech-Language-Hearing Association (ASHA), that speech-language pathologists play a primary role in the evaluation and treatment of infants, children, and adults with swallowing and feeding disorders" (ASHA, 2001, p. III-1). Although dysphagia is not a communication disorder per se, speech-language pathologists have assumed a leadership role in its diagnosis and treatment. This is a natural assumption of professional responsibilities for speech-language pathologists, particularly those working in medical settings, given their education and broad knowledge base about the anatomy and physiology of the human oral-pharyngeal-laryngeal mechanism. Sucking, chewing, and swallowing disorders can be life-threatening, particularly in the elderly and feeble (Cowen, Simpson, & Vettese, 1997), and with the assumption of dysphagia management by speech-language pathologists also comes legal responsibilities. This article addresses dysphagia management from an investigative and litigation perspective.
In a preliminary, informal Westlaw search of current cases in several jurisdictions, and involving testimony, affidavits, or depositions from speech-language pathologists, audiologists, and/or speech and hearing scientists, it was found that medical malpractice related to the management of dysphagia frequently occurs as part of legal cases brought against hospitals, nursing homes, and physicians (Tanner & Guzzino, 2002). Particularly in nursing homes where the incidence of dysphagia can be as high as 50% (Logemann, 1995, and others), some attorneys are focusing on this legal sector of medical malpractice litigation (Wright, personal communication, 2004). The courts call expert witnesses, often professors or speech and hearing scientists, to testify in depositions and trials in these legal cases. The following examines pivotal issues in investigation and litigation, and the procedures used by expert witnesses to maximize objectivity in reaching expert opinions. Specifically addressed are the definitions of dysphagia, professionals involved in dysphagia management, clinical timelines, the "possibly-probably" distinction, clinician competency and proficiency, the importance of the videofluorographic swallow study (VSS), adequacy of professional communication, clinical documentation, and diagnosis and treatment practices relative to current and accepted professional standards.
DYSPHAGIA LITIGATION AND THE EXPERT WITNESSES
An expert witness in dysphagia litigation is often a professor or a speech and hearing scientist who also has extensive clinical experience....
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