Q.

A 22 year old gentleman lives in one of our level 3 group homes 24 hours a day.  He is developmentally and physically challenged.  He recently had a couple of cases where he aspirated and had to be taken to the hospital for assistance.  Due to this his physician inserted a feeding tube.  Both he and his mother have requested our center staff feed him orally i.e.: pureed foods, liquids, etc.  The doctor has informed the patient and the mother of the risks involved (which include possible death) and the mother has signed a document acknowledging the risks.  The mother feeds the patient by mouth when he visits her.  Now, the mother wants the center staff to feed him by mouth such things as popsicles, yogurts and puddings.  We do not know how to proceed:

A.

During a telephone conversation you told me the following: 

The patient is both developmentally disabled and suffering from cerebral palsy.  He has a feeding tube, because he is unable to swallow without risk of aspiration.  His primary care physician is not on your staff.  The physician was concerned about the possibility that the patient would die from aspiration if he eats solid foods, or even pureed or thickened foods.  The patient is a full time resident at your level 3 licensed residential home and requires medical oversight.  He is not currently considered “terminal”.  The mother, who is his legal guardian, sometimes takes him home for visits.  She has chosen to feed him food at home and sometimes does so in the facility.  She wants facility staff to feed him as well.  You believe that the mother is competent and has been appointed by the court to be his guardian.  The patient has been in your facility for approximately a year.  The mother says that in addition to quantity of life she wants her son to have quality of life which she interprets to include eating solid food. 

Under the circumstances, it seems to me that if your staff undertakes to feed the patient, there is a substantial risk of liability.  Since the doctor warned that there is a risk of death if the patient eats solid food, it is possible although probably unlikely that a prosecutor could conclude your staff would be culpably negligent to feed the patient by mouth.  This could conceivably result in criminal charges. 

Since the mother is the legal guardian, she does have legal authority to sign a waiver releasing your facility and staff from civil liability, but even that is open to challenge. 

Generally, I believe that you accept a very substantial risk of either criminal or civil liability if you feed the patient and he dies or suffers some other type of unanticipated medical problem. 

Disclaimer:  This letter is intended to be general and educational.  No statement made should be considered as legal advice and no action should be taken in reliance on the statements contained in this letter.  The law in the area discussed varies from state to state.  Competent local counsel should be consulted prior to taking any action.  The opinions expressed are solely those of the undersigned and are not necessarily those of the Mental Health Risk Retention Group, Inc.