Jury Verdict Submission & Research

Eating comes as naturally to human beings as talking, walking, sleeping, and using our opposable thumbs. But according to the National Safety Council, eating food is not without its hazards, as choking is the fourth leading cause of unintentional injury death. http://www.nsc.org/learn/safety-knowledge/Pages/safety-at-home-choking.aspx.

Since the Heimlich maneuver was invented in 1974, however, it has been credited with saving over 100,000 lives.  It is a basic part of the training given to all medical providers, and it has become standard instruction in CPR courses attended by people from a variety of businesses, including restaurant management and school employees, as well as the general public.

Just as with any any other lifesaving tool, the American legal system has built a network of rules and laws around the use and misuse of the Heimlich maneuver. A number of states have enacted Good Samaritan laws, which provide liability insulation for those who seek to help another person in distress. However, these laws do not usually provide legal protection for medical personnel, nursing home workers, or educational workers who have a duty to use the Heimlich maneuver whenever someone in their care is suffering a choking episode. Sadly, a number of cases have cropped up over the years where a choking person suffered serious injury or death as a result of a caregiver’s failure to properly administer the Heimlich maneuver. Many of these cases have settled out of court. But a number have not. The list below provides a snapshot of a few representative verdicts from the past few years.

The facts of most of these cases are tragic. While they provide some guidance for those of us in the legal profession who need information to value the cases that cross our desk, they are also a reminder of the importance of the Heimlich maneuver itself. All of us should have a basic understanding of how it works to be apply it properly in the event of an emergency. The NSC webpage link above provides an overview of the procedure. At the very least take some time today to read it. You never know when it might come in handy.

A Few Notable Jury Verdicts Involving the Heimlich Maneuver:

1)      A seven-year-old choked on a meatball at school. Teachers on duty first slapped him on the back and then twice attempted the Heimlich maneuver, but were unable to dislodge the meatball. When EMTs arrived, the child was unresponsive. The EMTs eventually cleared his trachea and got him breathing, then transported him to a local hospital. The period of oxygen deprivation left the child with brain damage, quadriplegia and blindness.

His parents sued a number of entities, including the ambulance company, as well as the manufacturer and the distributor of the meatballs. The ambulance company settled prior to the trial. The matter proceeded to a trial against the manufacturer and distributor. Following a one month trial, the jury returned a verdict for the defense. For more information on counsel arguments and expert witnesses, Lexis Advance subscriber may view the jury verdict summary here: Kelvin Santiago by his parents Julia Rivera and Juan Santiago as his next friends, Julia Rivera and Juan Santiago of Lowell v. Rich Products Corp., Rich Seapak Corp., Casa Di Bertacchi Corp., Trinity EMS and City of Lowell; 2014 Jury Verdicts LEXIS 5886

2)      In another meatball choking case, nursing home resident Walter Polomski suffocated, developed brain damage, and died. Polomski suffered from a swallowing disorder and a known increased risk of choking. An aide was directed to sit with him to prevent choking, and his meals were required to be ground up. In March 2008, Polomski was mistakenly served a tray of hard, golf ball-sized meatballs intended for another resident. Four aides were required to supervise residents in the dining room, but only three were present that day. A nurse also was required by law to be present, but never showed up that day. When Polomski began to cough, then choke, the aides there claimed to not know the Heimlich maneuver. Polomski was wheeled through the facility in search of a nurse; when one was found, attempts at the Heimlich were unsuccessful.

Polomski’s estate sued the nursing home owner. At the conclusion of the trial, the jury found for the plaintiff and awarded $ 2.35 million. For more information on counsel arguments and court information, Lexis Advance subscribers may view the jury verdict summary here: Estate of Walter Polomski v. SavaSeniorCare, LLC, et al; 2011 Dolan Media Jury Verdicts LEXIS 28664

3)      On a slightly lighter note, we find the case of Michael Bates, who began to choke on a Beanie Weenie sausage while on his work lunch break. Bates, who was alone at the time, used the back of his chair perform a sort of Heimlich maneuver on himself. Although Bates caused the food to pop back out of his throat, he injured his back during the procedure. Bates maintained that what popped back out contained a rubbery foreign substance, and he filed an action against ConAgra, which made and sold Beanie Weenies.

The jury reached a defense verdict. Lexis Advance subscribers may view the jury verdict summary here: Bates v. ConAgra Foods; 2011 TN Jury Verdicts & Sett. LEXIS 101

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