Court: Statements About Choking in Wrongful Death Case Against Florida Nursing Home Not Hearsay – Benjamin v. Tandem Healthcare

In Benjamin v. Tandem Healthcare, Florida’s Fourth District Court of Appeal explains the hearsay rule and how it relates to a wrongful death action concerning a fatal choking incident at a nursing home.

Marlene Gagnon died while a resident at a West Palm Beach nursing home owned by Tandem Healthcare when she allegedly choked on coleslaw. Gagnon had suffered from Alzheimer’s disease and had documented swallowing problems as a result of a bout with polio as a young child. Jodi Benjamin, Gagnon’s daughter, sued Tandem for wrongful death, arguing that the company breached its duty of care owed to Gagnon by failing to supervise her while she was eating.

At trial, Benjamin presented experts who testified that Tandem was responsible for allowing Gagnon to choke, which ultimately led to her death by cardiac arrest. Meanwhile, Tandem presented evidence in support of its claim that Gagnon suffered a fatal arrhythmia, which may have been caused by two prescription drugs she was using.

Thus, the trial focused on the question of whether or not Gagnon choked to death. On the day in question, a nursing assistant brought Gagnon to the facility dining room where she was monitored by her speech therapist. Before leaving the room, the therapist asked the nursing assistants on site to keep an eye on Gagnon. One of these assistants later noticed Gagnon “staring blankly.” Nurses did not find any food in Gagnon’s mouth and attempted the Heimlich Maneuver without success.

Testimony indicated that food was later found in the back of Gagnon’s throat after she was transported to a hospital emergency room. She was removed from life support a few days later.

To support the estate’s case, Benjamin proffered the testimony of Ian Samsoondar, who was working in Tandem’s kitchen at the time of the incident. According to Samsoondar, he witnessed a nurse assistant run into the kitchen and yell “somebody choked on some food.” Samsoondar did not know the employee’s name, nor whether she actually observed the choking, rather than hearing about it from other Tandem workers. He further asserted that a Tandem kitchen manager said in a later staff meeting that Gagnon had choked on coleslaw. Samsoondar could not recall whether the kitchen manager observed the incident.

The trial court excluded this evidence, however, ruling that it was inadmissible hearsay. Hearsay is testimony about something for which the witness has no direct personal knowledge, often based on another’s statements. Because the estate could not show that Samsoondar had direct knowledge of the cause of Gagnon’s death, his recollection of statements by the nurse and kitchen manager could not be used at trial, according to the lower court.

While generally inadmissible, Florida law allows for hearsay evidence to be admitted at trial under certain limited circumstances. For example, a court may allow a statement to be used against a party to a lawsuit where the statement is by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship.”

Here, the Fourth District found that the kitchen manager’s statement qualified as a statement by a Tandem employee in the course of his employment. As a result, the lower court erred in excluding Samsoondar’s testimony regarding the statement. The Court remanded the case for further proceedings.

The South Florida personal injury attorneys at Anidjar & Levine have vast experience bringing negligence claims on behalf of injured clients throughout the area, including in Coral Springs, Boca Raton and Pompano Beach. If you were or a loved one was injured in an accident due to another person’s negligent behavior, call our Ft. Lauderdale office for a free consultation.

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