News: Plaintiffs’ 3-month-old daughter was taken to the hospital with a high fever and elevated pulse rate. The emergency department (ED) physician diagnosed an ear infection and discharged the infant with a prescription for antibiotics. Three days later the girl’s father found her cold and lethargic. He took her to a different hospital, where she was diagnosed with pneumococcal meningitis, hypoxic brain injury, and hydrocephalus, which required hospitalization for a month. After discharge, the girl lived for 20 more months, but she was constantly in and out of the hospital and eventually died from respiratory arrest, which the plaintiffs claimed was due to the originally undiagnosed meningitis infection. Plaintiffs sued the hospital and the ED physician, and they won a verdict of joint and several liability for $1.7 million.
Background: The plaintiffs’ daughter was born as a full-term baby with no material health problems or birth defects. She enjoyed normal development for the first 15 weeks. On Dec. 16, 2007, the plaintiffs’ daughter began to suffer from a high fever, and she went to the ED. The baby initially was observed by the nurse with abnormal vital signs of elevated pulse of 190 beats per minute, elevated respiratory rate of 33 breaths per minute, and a high temperature of 103 degrees. The ED physician noted that he reviewed the nurse records and documented a history of fever, but nothing else. He then conducted and reported a normal exam, but he circled the preprinted finding of “abnormal tympanic membranes.” He did not describe any findings in either of the baby’s ears, nor did he even indicate which ear he suspected to be infected. He diagnosed the baby with a middle ear infection but otherwise joked with the parents that she was essentially too healthy to be in the ED. He discharged the baby with an antibiotic prescription, with the instruction to the parents to follow up with their regular pediatrician on an “as-needed” basis.
Three days later, the baby’s father found her lethargic, cool to touch, and very pale in her crib. The baby’s pediatrician sent her to a different hospital immediately, where she was diagnosed with pneumococcal meningitis and a hypoxic brain injury and hydrocephalus, caused by her infection. After discharge a month later, the baby suffered constantly and eventually died just after her second birthday due to respiratory insufficiency.
Plaintiffs sued and contended that the hospital and the doctor were negligent because the doctor had failed to evaluate the likelihood of a serious bacterial infection and did not exclude the possibility of bacteremia and meningitis. Plaintiffs alleged that a reasonable doctor would have at least ordered a complete blood count and a urinalysis, which were not done, and that abnormal test results would have caused additional evaluation, resulting in a correct diagnosis. The plaintiffs alleged that the doctor should have followed up with the patient in person within 24-48 hours.
The defense position was that neither the hospital nor the doctor were negligent because the doctor had acted within the proper standard of care given the facts before him at the time, especially evidence suggesting that the most likely ailment was a simple middle ear infection. The defense maintained that plaintiffs could not prove that their daughter was suffering from meningitis at the time of treatment, and that the baby contracted meningitis after leaving the ED.
The jury rejected the defense arguments and found for plaintiffs in the amount of $1.7 million, representing $860,000 for economic damages and $860,000 for the baby’s pain and suffering.
What this means to you: This case is an unfortunate lesson in not being complacent when confronted by what might seem to be routine presenting symptoms. Many fussy babies who present with high fevers do have a simple ear infection, and one can speculate that this doctor made up his mind upon learning the symptoms. Certainly the fact that the doctor didn’t specify why he concluded as he did or even indicate which ear was likely infected suggests that he believed this was a routine case that did not warrant further investigation. Thus, one lesson here is that each case must be analyzed with the idea that it could be the outlier. Care must be taken to rule out the unlikely, and conclusions even of the likely diagnosis must be documented with an eye toward having a solid record for use in defending against any subsequent litigation.
Another lesson is that what likely seemed a jovial comment at the time that the baby didn’t belong in the ED likely looked horrible and probably was repeated for dramatic effect (with sarcasm) again and again by the plaintiffs’ lawyers. In the context of treating patients, every spoken word might someday be repeated with a life of its own. While a physician can have a cheerful bedside manner, it does caution in favor of thinking twice before giving a stray comment.
Note in particular that sepsis often is overlooked in all age groups because older adults might be essentially asymptomatic while young infants, the most vulnerable, often have very high fevers from relatively common viral or bacterial infections. However, sepsis always must be ruled out on all patients presenting to an ED with symptoms. It has become a standard of care in most hospitals.
The emergency physician in this case picked the easy path toward a simple diagnosis and never looked back, even though the infant presented with the three most common signs of sepsis: high fever, rapid heart rate, and rapid respiratory rate. In addition to inadequate documentation of what he saw and where he saw it, he did not make any attempt to support his assumption with diagnostic tests. A simple white count, blood cultures, and a serum lactate should have been ordered.
More generally, there is no place in medicine for untested assumptions. Where there is uncertainty, there must be continued probing and questioning. A second or even a third opinion from an expert often can bring clarity and alleviate doubt. Had the physician ruled out sepsis, the defense’s argument that the infant contracted meningitis after discharge might have been relevant.
A final issue in this case was the discharge instructions given to the parents. Prescribing antibiotics indicates that the patient was suspected of having a bacterial infection. Follow-up to ensure that the correct antibiotic has been prescribed and that the patient’s condition is improving rather than deteriorating is critical. Telling the parents to follow-up with their pediatrician “as needed” rather than “within 24 hours” or some other very short timeframe could well have directly contributed to the death.
- D.O. No. 09-9629 (Berks Cty. Ct. of Common Pleas, PA, June 14, 2013).