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Deposition Designation Station

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William A. Lybarger, PhD

Expert witness related to personal injury and wrongful death of individuals with developmental disabilities and/or mental retardation.

I have been providing expert witness services for several years. My practice, for the most part, has involved personal injury and wrongful death matters in health and human service agencies. More specifically, my work frequently requires a Standard of Care opinion related to the level of care provided by a service organization to a person with a developmental disability and/or mental retardation. As a part of this practice I have worked several cases involving an eating disorder referred to as PICA.

According to PICA is the persistent eating of substances such as dirt, paper clips, screws or paint that have no nutritional value. Additionally, it has been my experience that individuals with this eating disorder tend to gorge food. They look for opportunities to sneak food and force feed themselves. That behavior can cause choking as a result of food lodged in the throat.


Technical Issues:

The focus of this matter was the organizations failure to develop a Plan of Care that protected the individual from harm in tandem with failure to supervise.

Case Overview:

The defendant in this matter was a public Board of Developmental Disabilities. The case involved a middle aged woman with moderate mental retardation who attended day activity services. The woman choked while under their care and died of asphyxiation. The woman had a documented history of stealing food and consumption. While at the Center the individual entered a restroom unsupervised and where she ate peanut butter/peanut butter cookies and later choked to death.

Facts of the Case:

[1] I was retained for expert services by a law firm to review case material, identify any applicable federal, state, or local laws, or regulations that were violated, identify any industry Standard of Care that was violated, identify any Bill of Rights that were violated, identify any acts or omissions that were negligent, reckless, will or wanton and offer your expert opinions.

[2] The individual arrived at the work center and was asked to put her coat and purse away in a locker. She asked to go to the restroom with her coat and purse. Staff asked her to leave her things in the work area. She took her coat off but tried to take her purse into the restroom. She was asked if she needed the purse and she said no. The staff person watched as she entered the restroom and met her coming out of the restroom. A few minutes later, she heard a commotion.

[3] Employees in the work area noticed the individual enter the work area and she began what appeared to be a seizure. She fell on her back and began jerking. During CPR food particles were found on her mouth. She could not get her breath. She died at the hospital.

My Analysis:

[1] The individual's behavior upon arrival at the Center was suspicious. The staff person failed to perceive the significance of that behavior. As a result of that individual failure, the individual was able to gorge while in the restroom.

[2] The individual should have been searched for food items before entering the restroom.

[3] Even though staff were aware of the individuals food sneaking behavior and the danger of choking they failed to incorporate into the Individual Program Plan a behavior control mechanism that included protection from harm.

[4] As a result of failing to emphasize food sneaking and related danger of choking in the plan of care staff assumed the individual was having a seizure rather than choking. Emergency intervention focused on CPR rather than food removal.

[5] The Center failed to put in place a Risk Management process that would have illuminated the need to incorporate the danger of choking into the plan of care.

[6] EMS arrived and continued CPR. When the individual was intubated they found a found a significant amount of peanut butter in the individuals throat. ER admission was for cardiopulmonary arrest, most likely related to aspiration.

[7] The autopsy determined that death was the end result of near asphyxia by bolus of food.

[8] Based on my education, training and experience it is my opinion that the care and treatment provided failed to meet the Standard of Care and did more likely than not contribute to the individual death.

Status of the Case:

[1] The defendant's motion for summary judgement was granted.

[2] Plaintiff appealed.

[3] Plaintiff's attorney expects the losing party will appeal to the state Supreme Court.

[4] I have no additional information.

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William A. Lybarger, PhD provides expert witness and consultation services related to Standard of Care issues in Health and Human Service Agencies. In most situations he is asked to offer opinions about the propriety of an interaction between an employee or employees and a customer related to Standard of Care or applicable external state or federal regulations.

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