|
MALTREATMENT INVESTIGATION MEMORANDUM Minnesota Statutes, section 626.557, subdivision 1 states, “The legislature declares that the public policy of this state is to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment.”
License Number and Program Type: 1076924-H_CRS (Home and Community-Based Services-Community Residential Setting) Investigator(s): Gessner Rivas 651-431-3970 Suspected Maltreatment Reported: It was reported that a staff person (SP) provided a sandwich to a vulnerable adult (VA) without cutting the sandwich into small pieces per the VA’s eating protocol. As a result, the VA choked on the sandwich, the SP performed cardiopulmonary resuscitation (CPR) until emergency medical services (EMS) arrived. The VA was hospitalized and placed on life support. Date of Incident(s): July 23, 2023 Nature of Alleged Maltreatment Pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (b), and Minnesota Statutes, section 626.5572, subdivision 15, and subdivision 17, paragraph (a): The failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct. Summary of Findings: Pertinent information was obtained during a site visit conducted on August 4, 2023, from documentation at the facility, law enforcement records, and medical records; and through three interviews conducted with the SP, a facility management staff person (P1), and a resident (R). The VA’s Risk Assessment Detail stated that the VA was at high risk for choking and had three prior choking incidents occurring between November 2022 and January 2023. The VA’s Aspiration & Choking Avoidance Plan stated that the VA had a seizure disorder and was on a dysphagia (difficulty swallowing) diet. On January 27, 2023, the facility created the VA’s Protocol for Eating which stated that the VA’s food had to be cut into “small bite size pieces,” the VA was to be supervised at all times while eating, and it was recommended that staff persons sit at the table with the VA while eating to prompt her/him to slow down. The VA enjoyed going to church. The facility was a two-story house, the kitchen and dining area were on the main level. The kitchen was immediately adjacent to the dining area, separated by a counter with a walk-through space to the dining area. The dining area has a small table with four chairs, the narrow end of the table was in front of a window. The R sat by the window and the VA sat by the side opposite the kitchen. On the wall behind the VA’s side were bulletin boards where numerous policies and practices were on display, including the VA’s Protocol for Eating. The SP provided the following information: · The SP worked the overnight shift. The SP stated that the VA liked to eat her/his food quickly, would take food without staff persons knowledge and hide the container when finished. The SP worked with the VA for about 5 years, the SP stated that the VA had numerous choking incidents in the past. The SP stated that to her/his knowledge the VA’s plan had always been to cut up the VA’s food and to observe her/him eating. · The SP stated that on the morning of the incident, the SP asked the VA and the R, who were ready for breakfast at 6:30 a.m., what they wanted to eat because there was no milk for cereal. The VA provided a couple of options, and the VA and the R each chose to have a sandwich. · As the SP prepared one sandwich on the kitchen counter, spreading mayonnaise on a slice of bread, with turkey breast and cheese, the SP heard another resident yell from her/his room, “I am God, and I am half naked.” The SP went to check on the resident and to notify her/him that it was time for breakfast. The SP stated that when s/he returned to the kitchen, the VA had taken the sandwich from the counter and taken a bite. · The SP stated s/he gave the VA a glass of water and said to the VA, “Let me cut the sandwich,” the VA replied, “[SP], I got it.” The SP did not take the sandwich from the VA but watched the VA eat while making a sandwich for the R. The SP saw the VA put a large piece of the sandwich into her/his mouth, the SP asked the VA, “Are you okay, you’re rushing.” The SP noticed that when the VA tried to talk, s/he started getting red, so the SP went behind the VA and stood her/him up and started doing the Heimlich maneuver on the VA and some food came out but thought the rest of it was still in the VA’s esophagus. The VA had eaten about three quarters of the sandwich. · The SP had the R, who was sitting at the table call 9-1-1. The SP stated that the 9-1-1 operator told the R to tell the SP to lay the VA on the floor and perform CPR. The SP laid the VA on the floor, placed a pillow under her/his head, and performed CPR for approximately ten minutes until EMS arrived and took over. · The SP stated that the EMS continued to perform CPR for more than 20 minutes, until they got a pulse from the VA and then placed the VA on a “stretcher” and transported him/her away from the facility in an ambulance. · The SP stated that s/he followed protocol for the VA when s/he noticed that the VA was choking. The protocol was written down and on display on the board in the dining area. · The SP took a picture of the remains of the sandwich with the glass of water next to it and sent it to the facility’s Quality Improvement office. The SP provided a copy of that picture to the investigator. The R provided the following information: · The R stated that it was common for the VA to eat fast, that the VA liked being the first one done eating. The R recalled that the SP gave the VA the sandwich. The SP gave the VA a glass of water and told the VA to slow down after the VA started eating the sandwich. The R confirmed that the VA ate about three-fourths of the sandwich. · The R stated that the VA started choking and the SP went to the VA and took her/him to the sink and told the VA to spit out the sandwich, the VA spat out a piece. The R stated that the SP performed the Heimlich maneuver on the VA. The R called 9-1-1 as directed by the SP, conveyed to the SP to start CPR as instructed by the 9-1-1 operator, and stayed on the phone with the 9-1-1 operator until the EMS arrived and s/he let them in. · The R stated that the SP performed CPR on the VA on the kitchen floor. The R also stated that in the past, the SP had cut up the VA’s food. Law enforcement records provided the following information: · A narrative prepared by the Roseville Police Department stated that the SP prepared a sandwich and presented it to the VA without cutting it into small pieces as written in the VA’s eating protocol. When the SP saw that the VA was choking s/he rushed to the VA, performed the Heimlich maneuver on the VA and instructed the R to call 9-1-1. · The SP was walked through how to perform CPR. The SP performed CPR for about six to seven minutes until EMS arrived and took over, EMS performed CPR for about 20 to 30 minutes until they got a pulse and transported the VA to the hospital. P1 provided the following information: · P1 stated that after a choking incident in January 2023, for which the VA was hospitalized, the facility worked with the VA’s doctor, guardian, and case manager to implement the VA’s Protocol for Eating on January 27, 2023. The facility also created a Mealtime Observation Form on which staff persons were to document how many times the VA had to be prompted to slow down. All staff persons at the facility were trained on the VA’s protocol by a facility nurse; the training was conducted on February 7, 2023. · P1 stated that s/he was first informed of the choking incident via a group text to the Program Director and the Program Supervisor sent by the SP at 7:22 a.m. the morning of the incident. The message stated that the VA had choked, passed out, 9-1-1 was called, and EMS performed CPR for 20 to 25 minutes before they got a pulse and took the VA to the hospital. · P1 called the SP later that day and asked the SP to walk her/him through what had happened. P1 stated that the SP said there was no milk for cereal, so s/he made sandwiches for breakfast because the residents wanted sandwiches. The SP made a turkey sandwich and gave it to the VA and started to make another sandwich for the R while keeping an eye on the VA. The SP stated that the VA took a big bite and started choking, the SP rushed to the VA and gave him abdominal thrusts, told the R to call 9-1-1 and the SP was guided on how to perform CPR untill the EMS arrived six to seven minutes later. · P1 asked the SP why s/he did not follow the VA’s protocol and the SP stated that s/he forgot because s/he was busy making a sandwich for the R. · P1 stated that the SP had problems following protocol. The SP had been given a final warning for not following protocol regarding the administration of medications. The SP would administer medications but would fail to document doing so. P1 stated that s/he had spoken to the SP and required that the SP follow the necessary protocol and to text a picture to P1 with proof that the documentation had been completed. P1 stated that a MAARC report had been filed when medications were missed by residents because of the SP. · P1 stated that the SP had failed to fill out the Mealtime Observation Form in the past. On the day of the incident, P1 had to ask the SP to fill out the form after the incident and the SP did not fill out the form accurately. P1 also stated that s/he asked the SP why s/he did not go with other alternatives for breakfast such as eggs, waffles, or yogurt; the SP replied that the residents each wanted a sandwich. Note: During the course of the facility’s internal investigation, the SP changed his account of events to reflect that the VA had grabbed the sandwich from the counter. On the Mealtime Observation Form, corresponding to the incident, the SP checked the box indicating that food had been prepared to diet specifications. Medical records provided the following information: · Records for the previous choking incident stated that on January 23, 2023, the VA was hospitalized due to choking on a hamburger during lunch. EMS was unable to intubate the VA at the facility due to obstructions, medical professionals intubated the VA at the emergency room. The VA was discharged two days later. · On July 23, 2023, the VA was admitted to the hospital at 7:30 a.m. for cardiac arrest. The VA was then admitted to the medical intensive care unit (MICU) for respiratory arrest secondary to choking that led to cardiac arrest. · The VA remained in the MICU, intubated and unresponsive with no pupil response or motor reflexes. On July 24, 2023, it was determined that the VA had an anoxic brain injury. On July 26, 2023, the VA was pronounced brain dead after two physicians conducted brain death exams and an apnea test. Some of the VA’s organs were donated. · The Minnesota Cause of Death Worksheet stated that the VA’s immediate causes of death were asphyxia and aspiration of food bolus. Facility documentation showed that the SP and P1 had been trained on the VA’s Aspiration & Choking Avoidance Plan and Protocol for Eating. The SP was also trained on the Reporting of Maltreatment of Vulnerable Adults Act. Conclusion: A. Maltreatment: Information gathered was consistent that on July 23, 2023, the SP prepared a sandwich for the VA for breakfast without cutting it into “small bite size pieces” as required by the VA’s plans. The SP observed the VA and encouraged her/him to eat slowly. When the SP noticed that the VA’s started choking, s/he performed the Heimlich maneuver and directed the R to call 9-1-1. The 9-1-1 operator provided guidance on performing CPR. The SP performed CPR until EMS arrived and took over. EMS performed CPR for more than 20 minutes until they detected a pulse and transported the VA to the hospital. The SP provided conflicting information regarding how the VA obtained the sandwich that was not cut up. The morning of the incident, the SP told P1 that s/he gave the VA the uncut sandwich. On the VA’s Mealtime Observation Form, the SP documented that the VA’s food had been prepared according to the VA’s plan. During the facility’s internal investigation, the SP stated that the VA took the sandwich from the counter. The SP told this investigator that the VA took the sandwich from the counter and started eating it. However, the SP did not take the sandwich from the VA at that point and allowed the VA to continue eating it without it being prepared to the VA’s plan. Although the SP monitored and prompted the VA to eat slowly, the SP did not follow the VA’s Aspiration & Choking Avoidance Plan and Eating Protocol’s requirement that the VA’s food be cut up into “small bite size pieces.” The VA choked on the sandwich requiring the SP and EMS to perform CPR until a pulse was detected, the VA was hospitalized for cardiac arrest and respiratory arrest as a result of the choking incident. The VA was pronounced brain dead on July 26, 2023. Regardless if the SP gave the VA the sandwich or the VA took the sandwich from the counter, given that the SP allowed the VA to consume food that was not prepared according to her/his plans, and that the VA subsequently choked on the food, and later passed away, there was a preponderance of the evidence that there was a failure to supply the VA with reasonable and necessary care and services. It was determined that neglect occurred (the failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to food, clothing, shelter, health care, or supervision which is reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult and which is not the result of an accident or therapeutic conduct). B. Responsibility pursuant to Minnesota Statutes, section 626.557, subdivision 9c, paragraph (c): When determining whether the facility or individual is the responsible party for substantiated maltreatment or whether both the facility and the individual are responsible for substantiated maltreatment, the lead agency shall consider at least the following mitigating factors: (1) whether the actions of the facility or the individual caregivers were in accordance with, and followed the terms of, an erroneous physician order, prescription, resident care plan, or directive. This is not a mitigating factor when the facility or caregiver is responsible for the issuance of the erroneous order, prescription, plan, or directive or knows or should have known of the errors and took no reasonable measures to correct the defect before administering care; (2) the comparative responsibility between the facility, other caregivers, and requirements placed upon the employee, including but not limited to, the facility’s compliance with related regulatory standards and factors such as the adequacy of facility policies and procedures, the adequacy of facility training, the adequacy of an individual’s participation in the training, the adequacy of caregiver supervision, the adequacy of facility staffing levels, and a consideration of the scope of the individual employee’s authority; and (3) whether the facility or individual followed professional standards in exercising professional judgment. The SP was aware of the VA’s plans requiring that her/his food be cut into “small bite size pieces,” the SP received training on the VA’s dietary plans prior to the incident, and the SP was responsible for the VA’s care at the time of the incident. The SP was responsible for maltreatment of the VA. C. Recurring and/or Serious Maltreatment: The Office of Inspector General is required to evaluate whether substantiated maltreatment by an individual meets the statutory criteria to be determined as “recurring or serious.” Individuals determined to be responsible for recurring or serious maltreatment are disqualified from providing direct contact services. Minnesota Statutes, section 245C.02, subdivision 16, states: “Recurring maltreatment” means more than one incident of maltreatment for which there is a preponderance of evidence that maltreatment occurred and that the subject was responsible for the maltreatment. Minnesota Statutes, section 245C.02, subdivision 18, states: "Serious maltreatment" means sexual abuse, maltreatment resulting in death, neglect resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought, or abuse resulting in serious injury. For purposes of this definition, "care of a physician" is treatment received or ordered by a physician, physician assistant, or nurse practitioner, but does not include diagnostic testing, assessment, or observation; the application of, recommendation to use, or prescription solely for a remedy that is available over the counter without a prescription; or a prescription solely for a topical antibiotic to treat burns when there is no follow-up appointment. For purposes of this definition, "abuse resulting in serious injury" means: bruises, bites, skin laceration, or tissue damage; fractures; dislocations; evidence of internal injuries; head injuries with loss of consciousness; extensive second-degree or third-degree burns and other burns for which complications are present; extensive second-degree or third-degree frostbite and other frostbite for which complications are present; irreversible mobility or avulsion of teeth; injuries to the eyes; ingestion of foreign substances and objects that are harmful; near drowning; and heat exhaustion or sunstroke. Serious maltreatment includes neglect when it results in criminal sexual conduct against a child or vulnerable adult. Although the VA had a history of choking including three prior incidents, the maltreatment that the SP was responsible for was not recurring maltreatment because it was a single incident for the SP. However, the maltreatment the SP was responsible for was serious maltreatment because the VA required the care of a physician due to cardiac arrest as a result of the choking incident and resulted in death, both of which meet the definition of serious maltreatment. The SP was disqualified from providing direct contact services. Action Taken by Facility: The SP was removed from the schedule pending an investigation. The facility completed an internal review and determined that although policies and procedures were adequate, they were not followed. The SP no longer worked at the facility. Action Taken by Department of Human Services, Office of Inspector General: The SP was disqualified from a position allowing direct contact with, or access to, persons receiving services from programs, organizations, and/or agencies that are required to have individuals complete a background study by the Department of Human Services as listed in Minnesota Statutes, section 245C.03. The determination that the SP was responsible for maltreatment and the disqualification of the SP are each subject to appeal.
|
