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How can I hold an assisted Living facility in New York accountable for their inaction?

Westbury, NY |

A relative of mine was at assisted living facility for few months. Recently, he died there under deplorable circumstances. He was sitting in his wheelchair, eating dinner in dining room, with about 50 other residents. Someone called the paramedics because they said he was 'unresponsive'. I spoke to the paramedics. When they got there, they said that they asked for a copy of his file, and the nurses and staff just scattered like cockroaches. They also said they tried intubating him, but they had a hard time doing so because there was food in his windpipe and he must have choked to death long before they got there. No one tried to revive him before the medics got there. They just left him in his wheelchair to choke to death. He died with no dignity. What can I do?

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Attorney answers 4


You can consult with a personal injury attorney and explain the same circumstances and ask the same question.

In my 35 years of experience in Nassau County, it doesn't appear that there is a case there based upon the minimal facts offered. While it is understandable that you're upset at such a state of affairs, its unlikely that much could have been done for an older person who was eating and food got stuck in their throat unless someone noticed the problem. Its a very difficult case to prove from the little you've provided so far.

Good luck with it.


Before you give up on the case, I would consult an attorney with experience suing nursing homes for neglect. While preventing a choking death may not have preventable, I would obtain a copy of his records and make sure there were no special orders regarding his diet. Was he considered a choking risk do to his age and condition, and were those risks ignored or neglect? Obviously more facts are needed to answer those questions, but you would be well served to initially take a look at his records, and his plan of care. Good luck.


luckily different people can come to different conclusions. I personally feel that you may have a very viable cause of action. I'm personally having a case in similar right now, and we're making progress. I am only answering this relative to New York law, but some statutes have been updated lately, one in particular within the last six months. They're very helpful for plaintiffs, and this will hopefully prevent similar tragedies in the future. I wish you the very best of luck. If you have trouble finding someone you can contact me. I work with attorneys throughout New York State, and I also have a network of attorneys and other states, but since you are in New York it should not be much of a problem. There various guidelines which are relevant, which seem to be breached. There also needs to be specific testing and accommodation for the swallowing of various types of food, and it sounds from what you've said that this may not have been properly done. I would suggest you allow the state agency to investigate immediately, and contactan attorney that has familiarity with this type of work. That will allow you to contemplate immediately having the matter investigated on your behalf privately, as well. There is a duty to confidently and properly immediately intervene when an emergency such as this happens, and from what you said it sounds like the situation was absolutely horrific. Best wishes,

Robert L. Brenna Jr
Brenna Brenna and Boyce PLLC
Rochester New York



Sorry for this. It sounds to me as though the 'servers' who are usually teenagers, did not recognize the problem, maybe in the aged state of the person, he did not cough loud, stand up, make a scene, as we see on tv. Sitting with a table full of slower responders might not have helped. But, that does not excuse that fact that someone should have been able to recognize the problem and do the Heimlich or 5 and 5. In writing request all records immediately, including staff on duty. If you do not get it now the story might change .. and do all that the others advised. This is what you should have expected. I get that you would be mad and want to confront.... but try not to until all the facts are in... sometimes confronting gives ques and at this point there is nothing to correct. If you have the nerve write your story in the local paper...


You should contact the agency in your area that oversees assisted living facilites. You may also want to contact an attorney with experience in nursing home litigation.

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