My husband choked on meat and perforated his esophagus...

by Wendy
(Los Alamitos, CA)

My husband choked on his first bite of meat when eating at a restaurant. He chewed it up but there were pieces of gristle in the meat and the ends were charred and dry like beef jerky. As soon as he swallowed it lodged in his throat. He could not breath. No one, not even the manager knew how to do the Heimlich maneuver.

I ran frantically around trying to get assistance when no one would respond. He stood up and threw up but it did not dislodge it. He still could not breath. He walked to the bathroom and at this point the manager who I thought was a kid came in and that's when I asked him if he knew how to do the Heimlich and he said no.

My husband tried to dislodge the piece by throwing up but then he started to throw up a lot of blood. They called 911 and he was taken to the hospital. He had a perforation in his esophagus due to the meat being lodged and throwing up.

The perforation to his esophagus was a life threatening situation and he currently has been in the hospital for 5 days and will be in the hospital for 3 to 4 more days. Hopefully surgery will not be needed but we will know in 3 more days.

The restaurant said they were not liable. I was only looking for them to pay out of pocket costs, but they said this was not something they do. Is this correct? Is there a way to get the out of pocket expenses paid? The meat had gristle and sharp, burnt edges. Also, no one on at the restaurant knew the Heimlich. I had to find someone to call 911.

Does the restaurant have any liability? Is there anything we can do to get compensation for his medical bills? Thank you for any information you can provide.

Visitor Question:
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ANSWER for "My husband choked on meat and perforated his esophagus...":

Wendy (Los Alamitos, CA):

The restaurant likely has no liability for your husband's injuries and resulting medical costs. While the food was quite obviously not very good, it would be hard to succeed in a lawsuit claiming gristle and charred edges of meat caused your husband to suffer a serious injury.

We were unable to locate any California laws or regulations requiring at least one restaurant employee to know the Heimlich maneuver.

While it would be difficult to prove the meat was the direct and proximate cause of your husband's life-threatening injury, it might not be impossible.

To have the basis of a viable personal injury claim against the restaurant will require the physician who treated your husband, or a physician familiar with the case, to state with a "reasonable degree of medical certainty" that your husband's injury was caused exclusively by the meat.

However, the restaurant will surely raise the affirmative defense that the meat served that day was the same for other customers and that no one else was injured.

Further, the restaurant may take the position that while the meat may have caused your husband to choke, the choking was the result of his eating and talking at the same time, or taking a breath at the wrong time while eating, or any other number of actions which may have caused the meat to become lodged in his throat.

We all at one time or another have had a piece of candy, popcorn, mint, or other type of food "go down the wrong pipe." It just happens.

Most personal injury attorneys do not charge for initial office consultations. Make an appointment and bring along your husband's medical records. After reviewing the facts and asking additional questions, the attorney will be able to give you a better idea of the viability of the claim, the chances of success, and the possible outcomes.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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