By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
News: In 2009, an 11-month-old >male went to the emergency depart-ment of a children’s hospital showing symptoms of a fever and a respiratory infection. The attending physician diagnosed the infection and sent him home. The infant returned to the same hospital the following day with an increased fever and an abnormal respiratory rate and heartbeat. The hospital treated the infant for bronchitis, and his condition improved before he was released the same day. The infant returned to the hospital a third day in a row and waited 90 minutes before he was seen by a physician. The physician ordered tests that revealed the boy was suffering from bacterial meningitis. Three hours after the test was ordered, the infant was administered antibiotics to treat the meningitis. However, by the time the bacterial meningitis was under control, the infant had suffered brain damage.
On behalf of her son, the infant’s mother filed a medical malpractice suit against the hospital and the physicians who treated the infant over the three days he went to the hospital. She claimed that the infant’s bacterial meningitis went undiagnosed too long and caused his brain damage. The brain damage, by the time of trial five years later, had resulted in loss of speech function, deafness, and the language development of a child half his age. The hospital argued that the infant’s symptoms were consistent with bronchitis and that his care was reasonable because he responded to the treatment. The jury determined that the physician the infant saw the second day was 40% responsible for failing to run relevant tests to uncover the meningitis in light of the infant’s symptoms worsening from the preceding day. The jury also found the physician and other staff members the infant saw on day three 60% liable for not seeing the infant and for not diagnosing or treating the bacterial meningitis in a more timely manner. Because all physicians involved with the infant’s treatment were agents or employees of the hospital, the hospital is being held fully responsible for the $10.1 million jury award, which consisted of $1.6 million in future medical costs, $1.1 million for loss of earnings, and $7.4 million in noneconomic damages.
Background: On Dec. 21, 2009, an 11-month-old male was taken to the emergency department of a children’s hospital with a fever and breathing problems. The attending physician diagnosed him with an upper respiratory infection and sent him home with recommendations to his mother to administer pain medication infant drops. The infant was brought back to the same hospital the following day with an increased fever that reached between 103 and 104 degrees Fahrenheit, increased trouble breathing, and a rapid heartbeat. The treating physician ordered a chest X-ray, which was unremarkable. The physician then treated the infant for bronchitis, and his condition improved before he was released the same day.
The infant was brought back to the hospital by his mother for a third consecutive day. According to court documents, the infant arrived at the emergency department at approximately 8:30 p.m. with indications of worsening symptoms. About 90 minutes later, the infant was examined and then admitted to the hospital. A lumbar puncture was administered, and the results indicated the infant was suffering from bacterial meningitis. At approximately 3 a.m., the infant was given the antibiotics to treat the meningitis. By this time, the infant already had suffered severe brain injury.
The mother filed a medical malpractice suit against the hospital and the physicians the infant saw over the three days he visited the emergency department. By the time of the trial in 2015, the 6-year-old boy was mostly deaf, had the language abilities of a 3-year-old, and required a hearing aid and medical care for the rest of his life.
The boy’s attorney alleged that he should have been tested for bacterial meningitis during the trip to the hospital on the second day, that he should have been treated more quickly on the third visit, and that the delayed diagnosis and treatment caused the boy’s brain damage. The hospital and physicians argued that their care was not negligent because the infant’s symptoms were consistent with bronchitis and that he responded well to the treatment.
The jury found that the hospital was negligent and the delayed diagnosis caused the infant’s brain injury. More specifically, the jury found that the physician the infant saw on his second visit was 40% liable for negligently failing to administer additional tests when presented with the infant’s worsening symptoms, and the third physician and other staff members were 60% liable for not treating and diagnosing the infant’s condition quicker on his third visit. Because the physician from the infant’s second trip to the emergency department was an agent of the hospital and the physician and all staff members involved in the third visit were employees of the hospital, the hospital was held liable for the entire $10.1 million jury award. The jury award included $1.6 million in future medical costs; $1.12 million for loss of earnings; and $7.4 million for past and future pain and suffering, embarrassment and humiliation, disfigurement, and loss of enjoyment of life and life’s pleasures.
What this means to you: This case illustrates that a patient’s condition and external circumstances can dictate the standard of care a physician is expected to administer. In this case, the 11-month-old had a fever and breathing problems in all three of his visits. However, the physicians from the first visit were not held liable for negligence, while the physicians from the second and third visit were determined to have provided care that fell below the appropriate standard of care. This liability indicates that the context of the visit and severity of conditions are relevant factors to consider when attempting to provide appropriate care.
The jury determined that, despite the patient’s condition improving during his second visit, additional tests should have been conducted in light of the infant’s prolonged and increased fever. Liability was found for the physicians who failed to timely diagnose and treat the bacterial meningitis during the second visit but not for the physicians who failed to diagnose or treat it during the first visit.
This liability suggests a heightened expectation in the mind of jurors to run additional tests and discover and treat the prolonged condition during follow-up visits for the same ailment. As such, a prudent physician or hospital would be sure to take extra steps to rule out alternative causes for the symptoms when dealing with a patient returning for treatment on consecutive days.
Another lesson from this case comes from negligence being charged against the hospital staff during the third visit. An almost 5-hour wait to be admitted and administered antibiotics after seeing a physician is not unreasonable for a patient entering a busy emergency department. However, because it was the infant’s third trip in three consecutive days and his conditions were worsening, the 5-hour wait time led to liability and allegedly caused the brain injury. Bearing in mind that the circumstances in which a patient enters the emergency department can have an impact on a jury’s determination, consideration of the patient’s history should be given when administering immediate care. Furthermore, a patient returning for a second or third consecutive day to the same hospital also provides the hospital and physicians a unique opportunity to discover and treat ailments that might have been overlooked by hospital staff during an initial visit. This subsequent visit is an additional opportunity to help the patient and mitigate potential liability arising from an earlier visit.
This case is clearly one of failure to rescue. Children generally recover quickly from the usual upper respiratory infections that plague ages 0-48 months. When an infant is brought back to a busy emergency department — always a less than desirable outing, especially for the parents — physicians must proceed with caution. While they do deal with hypersensitive patents and even Munchausen-like phenomena, the prudent physician has no choice but to confirm his or her assumed diagnoses. Taking the easy path because it is high volume can turn one’s back on what is high risk, as shown in this case in which the patient ultimately was suffering from a bacterial infection of the lining of the brain.
County Court of Common Pleas of Pennsylvania, Case No. 1112002168 (Nov. 14, 2015).