Certain fact patterns arise repeatedly in malpractice cases involving pediatric patients presenting to the emergency department (ED).

ED Legal Letter interviewed medical/legal experts, who identified and explained six of these patterns:

The emergency physician (EP) does not consult a tertiary center or specialists, even though the diagnosis is unclear. “Kids have had untoward outcomes because they were not referred in a timely manner to get the specialty care that they need,” says Michael J. Gerardi, MD, FAAP, FACEP, director of pediatric emergency medicine services for Atlantic Health at the Goryeb Children’s Hospital in Morristown, NJ.

In some cases, there is no communication, even when the child was seen recently at the tertiary care center. When the EP needs advice but fails to consult with specialists, says Gerardi, “that’s where people get into trouble.”

If the EP is unsure whether transfer is needed, contacting specialists always is an option. The idea is to talk through the case and receive a recommendation on whether care can wait or if the child really needs to be transferred right away. “That level of expertise is really widely available now. It’s just a matter of picking up the phone and asking for help,” Gerardi notes.

The ED transfers a critically ill child, but it does not happen quickly enough to prevent a bad outcome. “Smaller, rural hospitals are especially at risk, as they are the place of last and first resort for pediatric emergencies,” says Anna Berent, JD, senior director of claims at MCIC Vermont in New York City.

Often, transfer timeliness is the pivotal issue in pediatric ED medical malpractice lawsuits. “Frankly, these types of claims unfairly impact the ED provider,” Berent offers.

An example of this kind of malpractice case involved a 14-month-old patient who presented to a rural hospital ED with vomiting and fever. The EP ordered a CT scan, which took some time to complete and ultimately was inconclusive. “Out of abundance of caution, the physician proceeded to effectuate a transfer to a level I trauma center,” Berent reports.

Upon arrival, the infant was in multiorgan failure, and was diagnosed with intussusception. The infant died several days after admission to the receiving hospital.

The plaintiff argued the ED provider should have recognized the infant’s acute condition. The lawsuit also alleged the EP should have ordered the transfer without waiting for completion of the imaging studies to avoid delays caused by minimal staffing during off-hours in the smaller ED. “The matter ultimately settled, with the ED physician and radiologist sharing in the contribution toward settlement 60/40, respectively,” Berent reports.

Multiple factors contribute to terrible outcomes, some of which are outside the individual EP’s control. EPs do not control policies at receiving and transferring facilities, relationships between the hospital and other institutions, or practices used by transportation providers. “As much as the EP is the ‘captain of the ship’ in provision of care to said pediatric patient, there is an inextricable dependency on the infrastructure,” Berent explains.

The child comes to the ED in the early stages of a life-threatening condition, but it is too early to make the diagnosis. “I’ve seen a lot of cases with delayed diagnosis of sepsis and bad outcomes,” Gerardi says.

At the time of the ED visit, the child does not appear seriously ill. Many present only with mild symptoms and slightly abnormal vital signs. “Then, when they get to a shock level, they crash, and bad things happen,” Gerardi adds. It takes time for these dangerous cases to evolve. “You are not going to make every diagnosis in the ED. That’s why we admit patients for further workup in the hospital,” Gerardi says.

The EP cannot always make the diagnosis at the time of the ED visit. The EP does need to recognize if there is a sudden change, if further workup is needed, or if the child needs a higher level of care. “As an [emergency medicine] physician, that’s your obligation,” Gerardi says.

In one malpractice case, the EP consulted with a pediatric hospitalist, who recommended giving an oral food challenge. If tolerated, the child would be cleared for discharge. The child kept a few ounces of fluid down, was discharged home, but died four hours later.

Both the EP and pediatric hospitalist were sued. As an expert witness, Gerardi argued the EP was responsible as the physician of record in the ED who made the decision to discharge. The plaintiff attorney argued the hospitalist was legally obligated to come back to examine the child again before discharge. The hospitalist ended up settling.

“If the EP was concerned, the EP should have admitted the kid to the hospital — and then let them discharge the kid if they disagreed with the admission,” Gerardi says.

A parent says the child “just is not acting right,” but the child is discharged home from the ED without a clear diagnosis. “If you really can’t find anything, it’s then incumbent on you to observe them for a longer period. Or, get some help, get a second pair of eyes on them,” Gerardi offers.

If the EP is not really sure what is going on, and the parent details concerning symptoms (e.g., intermittent abdominal pain and lethargy), the EP is obligated to work that up, Gerardi says. Sometimes, symptoms disappear altogether during the ED visit. “That’s where time is your diagnostic friend,” Gerardi notes.

If a child reports three hours of diffuse abdominal pain, but the pain subsides with no tenderness and the child is well-appearing, it is probably reasonable to discharge the child. “You know you have 24 to 36 hours after the onset of symptoms before you have to worry about perforation from missed appendicitis.” Gerardi explains.

To guard against worst-case scenarios, the child can be brought back in eight to 12 hours. “That is another diagnostic technique, to bring them back for a re-evaluation,” Gerardi suggests.

This requires good communication on an important point: Discharge from the ED does not always mean things are fine. “Just because you’re being discharged doesn’t mean I won’t see you again,” Gerardi cautions. “We saw the trailer, but we didn’t see the whole movie. That will take time to develop.”

Parents hear about specific symptoms that warrant a return visit: for instance, pain that persists after eight hours, or a rash develops. To make this point crystal clear, Gerardi gives parents his cellphone number and tells them, “I want to hear from you tomorrow. If symptoms are abating, then all is good. If things are worsening, I am going to recommend that you come back.”

“They are so appreciative that I care and that they have a contact,” Gerardi adds.

Plaintiff lawyers allege a pediatric ED should be staffed with pediatric EPs all the time. Pediatric EDs may be staffed with pediatric EPs some (or most) of the time, but not all the time. This became the entire focus of a recent malpractice case.

A well-appearing newborn with some congestion and mild fever was discharged with instructions to follow up with a pediatrician. The next day, the pediatrician examined the infant, and also sent the infant home. The third day, the child came back to the ED in shock and was immediately sent to the intensive care unit, but ultimately died of myocarditis and overwhelming viremia. “That very bad outcome led to a very public lawsuit,” Gerardi notes.

The lawsuit named the EP, the ED group, the hospital, and the pediatrician. A major allegation was the hospital advertised its pediatric ED, but staffed it with general EPs. The pediatrician quickly settled.

That meant a jury did not hear about the fact the pediatrician sent the child home the day after the ED visit. The lawsuit alleged the EP prematurely discharged the child. The defense team obtained an amicus brief from the American College of Emergency Physicians stating general EPs are, in fact, qualified to treat children in a pediatric ED. “This all went to trial, and we won. It was appealed, and on appeal, we won again,” Gerardi says. Allegations involving staffing of pediatric EDs can bring the hospital into the litigation. If the plaintiff prevails, says Gerardi, “the hospital could be on the hook for punitive damages, which could be huge.”

EPs conducts only a cursory evaluation of a child referred by a pediatrician or urgent care center. “When a child is referred to you by another venue, you’ve got to give it even more attention,” Gerardi stresses.

In one tragic case, a child was referred to the ED by a nurse practitioner at an urgent care center. “The ED doctor did a cursory exam that showed the belly wasn’t tender, and sent the kid home. The kid ended up going into shock and dying,” Gerardi reports.

A child has complained about symptoms (e.g., abdominal pain or neurological issues) for weeks with no answers from other providers. By the time the frustrated, worried parents arrive at the ED, they are going to expect to leave with a clear diagnosis. “If you don’t give them a diagnosis, they’re going to be enraged — and you can see that coming,” Gerardi says.

It is best for the EP to be upfront in these cases. For example, the EP might state, “I am not a neurologist (or GI specialist). I can make sure your child is stable to go home. If not, we will find that out. I will give you a diagnosis plan for you to call one of the best specialists I know.”

This way, the parents do not leave the ED feeling as though nothing was done for them. Facilitating outpatient follow-up care is a way to demonstrate the EP cared, and that good care was provided.

The EP could call a neurologist colleague to talk through a relevant case and let the colleague know the child really needs to be seen in the next day or two. “If we can’t make the diagnosis, at least we can create and initiate a plan of action,” Gerardi says.