Legal Review and Commentary: Infant’s undiagnosed tuberculosis leads to brain damage:$3 million settlement 

By Jan Gorrie, Esq., Buchanan Ingersoll Professional Group, Tampa, FL

News: After several visits to its family physician, an 11-month-old child was taken to a hospital emergency department (ED). The child was then transferred to a children’s hospital, where a test for tuberculosis (TB) was positive. While the TB had gone undiagnosed and untreated, the child developed meningitis, which eventually led to brain damage. The children’s hospital, its pediatrician, and the initial hospital settled for about $3 million. A favorable verdict for several of the treating physicians followed.

Background: On April 2, an 11-month-old infant was taken to his family’s general practitioner with complaints of cough, cold, and diarrhea. After examining the child and finding nothing alarming, the parents were told to return if there was a change in the child’s condition. Later that day they did return as the child had developed a fever in addition to the other symptoms.

Early that evening the child was admitted to a local community hospital with an admitting diagnosis of bronchitis and enteritis, which is inflammation of the intestine. During this hospital admission, a chest X-ray was performed that the plaintiff later alleged indicated hilar adenopathy, which could have suggested primary pulmonary tuberculosis. However, the family physician was not told of this finding and released the child from the hospital without having a TB test performed.

On April 7, the child was taken to his primary pediatrician because he still was complaining of the same symptoms. The pediatrician prescribed medications to treat the diarrhea. The next day the child began having seizures and his parents took him to a different community hospital ED, where he was diagnosed as having meningitis. After four days of hospitalization at the community hospital, the child was transferred to a children’s hospital.

Shortly after being admitted to the children’s hospital, a TB skin test was performed and found to be positive. Ten days had elapsed between his first seeking care and the TB diagnosis. For the next month, anti-TB medications were administered until the child developed liver toxicity to the medication. The toxicity was probably due to the viral etiology of the compounding meningitis. However, it was not until the child’s third admission to the children’s hospital that tuberculosis meningitis was diagnosed. The child eventually developed hydrocephalus, which required the insertion of a shunt.

He ultimately suffered severe neurological injury and cerebral palsy. The child now requires 24-hour medical care.

The plaintiff alleged that if the TB test had been administered during the first hospitalization, anti-TB medications could have been initiated much sooner and all the subsequent injuries could have been avoided. The plaintiff claimed that if the appropriate diagnosis of tuberculosis meningitis had been made sooner at the children’s hospital the child would not have sustained brain damage. In each instance, the plaintiff maintained that the physicians and hospitals violated the standard of care.

The defendants contended that the child did not have tuberculosis as the initial pathogen, that his meningitis was viral not bacterial, that the chest X-ray was not indicative of TB, that TB tests at the children’s hospital were negative, and that all tests results at the children’s hospital were consistent with viral meningoencephalitis.

The first community hospital settled for $150,000. The children’s hospital and treating pediatrician settled for $2.87 million. Trial proceeded against the family practitioner and primary pediatrician, as well as the ED physician at the second hospital; all were found to be not at fault.

What this means to you: According to the World Health Organization (WHO), TB is a communicable disease affecting the respiratory system and is most commonly spread by coughing and sneezing. Each year, 2 million people worldwide die from this curable disease. Many cases in the United States are found in prisons and among those who are HIV-positive.

"This case is unusual in that it involves an illness that rarely occurs or is rarely seen today in most parts of the United States and it involves a diagnosis that is not often made. Although we have seen some reoccurrence of specific strains of TB in the last one to two years, not even that has been very frequent. Therefore, TB is not something that most physicians would readily think about or consider in today’s world, especially in an 11-month-old baby. However, as this case indicates, physicians have to again give consideration to the possibility of TB, even in an infant, if a patient presents with symptoms that could be an indication of possible TB. TB has to go back onto the physician diagnostic radar screen for adults as well as children," says Stephen Trosty, JD, MHA, CPHRM, director, risk management consulting, APAssurance Corp. in East Lansing, MI.

Though TB has nearly been eliminated, "physicians have to be aware of the causes of TB and of factors that can increase the likelihood of its occurrence. In the case of children, practitioners have to know what questions to ask parents. The questions to determine high-risk category for TB include: 1) exposure to, or contact, with an adult case of TB; 2) living in a household in which a case of TB has occurred; 3) children of immigrants or refugees from high-incidence areas including Africa, Asia, Latin America, the Caribbean, and most of the Middle East; and 4) children who are living in areas with higher levels of TB, such as some inner-city populations, and some native communities. These questions can indicate potentially increased risk exposure for the infant/child," notes Trosty.

"If an infant or child has been in contact with an infected adult or falls into one of the four high-risk categories listed above, he/she should have a clinical assessment for TB and a tuberculin skin test should be done as soon as possible. This means that the physician has to be aware of the potential for TB and has to ask the noted questions and obtain the information relative to high risk. This is especially true if the child has a cough, bronchitis, and a fever that gets worse and will not go away. If the answers indicate high risk or there is a concern about the possibility of TB, a tuberculin skin test should be done immediately. Physicians have to be aware of appropriate tests to order for infants that can help detect the presence of TB. They also have to be aware of the limitations of the tests as they relate to infants and know what additional tests might be appropriate in order to make a diagnosis. Specifically, additional screening/testing that can and should be done on infants/children if TB is suspected or if they fall into a high-risk category include: 1) a chest X-ray to detect mediastinal or hilar adenopathy and/or pleural effusion, and 2) gastric or sputum smears or cultures to see if they are positive for mycobacterium tuberculosis," Trosty says.

"If, as the plaintiff alleged, the chest X-ray indicated hilar adenopathy, additional tests for TB should have been performed before releasing the child from the hospital in the first instance. A chest X-ray indicating hilar adenopathy is one of the important indications of possible TB. At that point, a gastric or sputum smear/culture should have been performed to determine if mycobacterium TB existed. In addition, a Mantoux tuberculin skin test should have been performed as part of the diagnostic effort. The Mantoux skin test is the recommended skin test for diagnosing TB, especially in infants and young children," adds Trosty.

It appears that neither the benchmark questions were asked nor the telling indicator discovered, all of which delayed the diagnosis.

"Timely diagnosis of TB is extremely important, almost critical, in infants because infants are far less likely to be able to contain the infection than are adults. TB infection in infants will progress to serious disease in 43% of those who are under 1 year of age and will do so relatively quickly. That is why accurate and timely diagnosis of TB is so important in infants, especially those who are symptomatic as appears to have been true in this case," Trosty says.

Once left untreated, TB can manifest itself in other ways.

"Common diseases that occur in undiagnosed and untreated infants who have TB include meningitis and osteomyelitis. And the infant in this case contracted one of the severe, complicating diseases — meningitis — that frequently occurs in infants with TB who go undiagnosed. The failure of the series of practitioners to recognize the potential symptoms of TB, to order a skin test, to accurately read and interpret the X-ray indicating hilar adeno-pathy, to order a gastric or sputum smear/culture, to keep the infant hospitalized, and to begin treatment for TB were all errors or breaches of the standard of care that occurred in this case. Although it can be difficult to make a conclusive diagnosis of TB in an infant as young as the child in this case, the infant did present with symptoms that could have been indicative of TB. However, no diagnosis of TB was made and there is no indication that any of the physicians or emergency room personnel asked the key questions to determine if the infant could be in a high-risk category for TB. There is nothing to indicate that TB was seriously considered as a possible diagnosis. The chest X-ray indicating hilar adenopathy does not seem to have been correctly interpreted as indicating the possible presence of TB; and, therefore, no gastric or sputum smears/cultures appear to have been ordered, to better determine if TB existed. The infant was released from the community hospital without any of the follow-up TB tests [i.e. skin test, gastric/sputum culture] after the telling X-ray result," Trosty says.

Time and again documentation proves to be a critical factor in medical malpractice cases.

"It is very important to remember that all of the steps noted above should be documented when they are occur. If TB had been considered but ruled out, it is very important that documentation exist to indicate the thinking/reasoning behind this decision. This could be critical in a subsequent legal action if there is an attempt to justify why the decision/reasoning had been correct at the time. There were several opportunities for physicians and hospital personnel to identify the existence of the TB or to order additional testing to help make the correct diagnosis but none of this occurred as it should have. Thus, there was a delay in diagnosis with serious consequences. It can be helpful to have documentation that substantiates the thinking, reasoning and process used to rule in or rule out potential or actual diagnoses," adds Trosty.

"It is important to know, and to not overlook, diagnoses or diseases that do not occur often; to know the primary symptoms of these diseases; to know the appropriate tests that can assist in making the diagnosis; to know the importance of making a timely diagnosis as it relates to the likelihood of serious illnesses or problems occurring from a delay in diagnosis. Unfortunately, the delay in this instance was compounded, and the undiagnosed infant developed serious corollary illnesses," states Trosty.

Even though most people probably do not know anyone who has contracted, let alone died from TB, TB still is a household word. So, familiarity probably contributed to the substantial settlement.

"In addition, the award in this case probably resulted from the location/jurisdiction of the case, namely Chicago or Cook County, which is known for large awards in malpractice cases. Further, the severity of the damages suffered by the infant are another contributing factor to the sum. The delay or failure in diagnosis ultimately resulted in the infant developing meningitis, hydrocephalus, severe neurological injury and cerebral palsy. This is an infant that would require comprehensive, total and expensive care for the rest of its life, and whose quality of life was drastically minimized; all of which was the result of undiagnosed TB," concludes Trosty.


Daniel Banderas-Mendosa, minor v. Dr. Flordeliza Villafuerte, Dr. Henry Munez, Dr. Alfredo Rumilla, Dr. Howard Lopata, Children’s Memorial Hospital, Dr. Donald Wharton, St. Mary of Nazareth Hospital, Cook County (IL), Circuit Court Case No. 94L-15894.