Aspiration warnings for 73-year-old hospital patient ignored by staff. $1.7M. Los Angeles County.


Medical negligence by nursing staff is blamed for death when patient aspirates food in rehab program after neck surgery.

The Case

  • Case Name: Higgins v. Providence Health System – Southern California dba Providence Little Company of Mary Medical Center San Pedro
  • Court and Case Number: Los Angeles Superior Court / BC577302
  • Date of Verdict or Judgment: Friday, April 14, 2017
  • Date Action was Filed: Wednesday, April 01, 2015
  • Type of Case: Elder Abuse, Medical Malpractice, Wrongful Death
  • Judge or Arbitrator(s): Hon. Ross Klein
  • Plaintiffs:
    Dona Higgins, in and through her Successor-In-Interest, Gary Higgins, 73.
    Gary Higgins, an individual, 74.
  • Defendants:
    Providence Health System – Southern California dba Providence Little Company of Mary Medical Center San Pedro
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $1,743,894.60
  • Contributory/Comparative Negligence: 30% comparative on other physicians.
  • Economic Damages:

    Medical: $239,005.63

    Funeral: $4,889.02

  • Non-Economic Damages:


  • Trial or Arbitration Time: 8 days. (10 days per defense counsel.)
  • Jury Deliberation Time: 3 hours. (4-5 hours per defense counsel.)
  • Jury Polls: 10-2 on negligence, 10-2 on wrongful death (based on negligence, and based on recklessness), 9-3 on elder abuse neglect, but no finding of ratification.

The Attorneys

  • Attorney for the Plaintiff:

    Moran Law by Michael F. Moran and Lisa Trinh Flint, Santa Ana.

  • Attorney for the Defendant:

    Hester Law Group, APC by Cecille Hester, Glendale.

The Experts

  • Plaintiff’s Medical Expert(s):

    Andrew Wachtel, M.D., pulmonology and critical care, Los Angeles.

    Sandra Wallace, M.D., infectious disease, Pasadena.

    Dawn Padley, R.N., nursing, Newport Beach.

    Jill Arends, SLP, speech pathology, Los Angeles.

  • Defendant's Medical Expert(s):

    Abraham Ishaaya, M.D., pulmonology, internal medicine, geriatric medicine, Los Angeles.

    Irving Posalski, M.D., infectious disease, Los Angeles.

    Davina Leary, R.N., nursing.

    Nancy Sedat, SLP, speech pathology, Los Angeles.

Facts and Background

  • Facts and Background:

    Ms. Higgins was admitted into Little Company of Mary Medical Center San Pedro on December 30, 2013 for acute rehabilitative care following neck surgery. Upon admission, she was to reported be at risk for aspiration, and required assistance with feeding. Physician’s orders required the nursing staff to supervise her during all meals and to hold oral feeding if she were coughing or lethargic. Plaintiffs contended that throughout Ms. Higgins’ admission from December 30, 2013 to January 6, 2014, nursing staff did not supervise or assist her with meals.

    On January 3, 2014, Ms. Higgins' PICC line became dislodged, and was re-inserted. Starting January 4, 2014, Ms. Higgins started developing swallowing problems, noted with crackles in her lung sounds, and having thick brown, yellow secretions and required suctioning.

    Ms. Higgins was seen by a speech therapist on January 4, 2014, who recommended that her diet be downgraded from regular to Dysphagia finely chopped, and a videoesophagram be done. Ms. Higgins’ physician followed the recommendation and ordered that the diet be changed to Dysphagia finely chopped, and a videoesophagram be done on Monday, January 6, 2014 because a videoesophagram was not available over the weekend.

    On Sunday, January 5, 2014, Ms. Higgins' lab results returned showing a WBC of 34.4, which is critically high. Per plaintiff, defendant’s nursing staff did not notify Ms. Higgins’ physician of the critical WBC. Per defense counsel, Ms. Higgins' physician, who noted other results from labs that date, failed to note the WBC of 34.4. Ms. Higgins’ physician testified that she had a high expectation that she be notified of the critical WBC. Ms. Higgins was not given an antibiotic for the critical WBC.

    Ms. Higgins continued to have swallowing problems, had lost her voice, and was suspected to have possible vocal cord paralysis. On January 5, 2014, Ms. Higgins’ physician downgraded her diet from Dysphagia finely chopped to pureed and ordered the staff to watch Ms. Higgins frequently with feeding. Ms. Higgins’ family testified that she always received a regular diet up until her aspiration event on January 6, 2014. There was no documented evidence showing that Ms. Higgins received the correct diet(s) after the physician changed the diet.  

    On the morning of January 6, 2014, defendant’s speech therapist did a bedside swallow evaluation, testing her with a regular diet of scrambled eggs and oatmeal from her breakfast tray. Within an hour, Ms. Higgins was found in respiratory failure and pulmonary arrest. A Code Blue was called and the plaintiff received chest compressions and other life-saving measures, including medications to increase blood pressure, as well as suctioning of her lungs after chest compressions had begun.

    During intubation, the pulmonologist noted copious amount of secretions that looked like tube feeding were suctioned from her trachea. Ms. Higgins was not on a gastric tube, and plaintiffs’ experts opined more likely than not the “tube feeding” was the oatmeal, since it was the same color.

    Ms. Higgins remained on a ventilator until her death on April 4, 2014, two months after her transfer to another facility. It was undisputed that as a result of the aspiration pneumonia, Ms. Higgins had to be treated with prolonged antibiotics which caused her to develop Clostridium Difficile (C.Diff) and complications from that condition. Ms. Higgins died on April 4, 2014 from sepsis secondary to C.Diff.

  • Plaintiff's Contentions:

    Plaintiffs contended that Providence Little Company of Mary Medical Center San Pedro (Little Company of Mary) failed to take all aspiration precautions with decedent, Dona Higgins, during her admission at Little Company of Mary knowing she was at high risk for aspiration, which resulted in her aspiration and pulmonary arrest on January 6, 2014. Ms. Higgins had to be intubated and was ventilator dependent until her death on April 4, 2014.

    Plaintiffs’ experts testified that defendant breached the standard of care in failing to assist and supervise Ms. Higgins with all meals. Plaintiffs’ experts further testified that defendant breached the standard of care in failing to make Ms. Higgins NPO (nothing by mouth) starting January 4, 2014 until the videoesophagram was done on January 6, 2014 to protect her airway while she was waiting for the test. Plaintiffs’ medical experts testified that Ms. Higgins had a pulmonary arrest due to her aspiration on breakfast that morning.

  • Defendant's Contentions:

    Defendant contended that Ms. Higgins was in a rehabilitation program and that "assistance" did not mean feeding her or staying in the room with her while eating, but that she was able to feed herself with periodic monitoring.

    Defendant also contended that Ms. Higgins’ arrest on January 6, 2014 was due to septic shock from the infection she developed from the PICC line, and was not the result of aspiration. It was defendant’s expert’s opinion that had Ms. Higgins received antibiotics starting on January 5, 2014 she would not have gone into arrest on January 6, 2014.

    Further, that the aspiration was the result of the Code Blue and not as a result of swallowing of food particles which was clear as no solid food particles were found upon suctioning the lungs during the Code.  

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    As a result of the aspiration event on January 6, 2014, Ms. Higgins went into pulmonary arrest requiring intubation. Ms. Higgins developed aspiration pneumonia and was on a ventilator for the remainder of her life. To treat the aspiration pneumonia and recurring pneumonia, it is undisputed Ms. Higgins required to be on prolonged antibiotics which caused her to develop Clostridium Difficile (C.Diff). Ms. Higgins died on April 4, 2014 from sepsis secondary to C.Diff.

Special Damages

  • Special Damages Claimed - Past Medical: $239,005.63

Demands and Offers

  • Defendant §998 Offer: $125,000