Legal Review & Commentary-Misdiagnosed encephalitis: $3.7 million CO verdict

News: A 40-year-old mother of two was on a skiing trip with her husband. She became ill and was diagnosed with mountain fever when she actually had viral encephalitis, resulting in brain damage. The $3.7 million verdict returned against the attending physician was reduced by a 28% charge of negligence against her husband.

Background: The plaintiffs were on a skiing vacation at Silver Creek, CO, which is about 9,000 feet above sea level, when the wife became confused and disoriented. She was taken by ambulance to a nearby medical center and then was transported to Denver. She was seen by the emergency room physician, who had training in high-altitude diseases.

However, under hospital protocols, her care was overseen by the on-call gatekeeper or hospitalist. The gatekeeper physician diagnosed her with acute mountain sickness and she was kept at the hospital overnight for observation. No other physicians were consulted. At the time of her discharge from the Denver hospital, the woman, a certified public accountant, had extreme aphasia. She was unable to count backward or name her children. While she could describe the president of the United States, she could not think of his name.

Similar symptoms

One day later she was admitted to a hospital in her hometown, where a diagnosis of viral meningitis was made and Acyclovir prescribed. However, brain damage already had occurred, and she now functions at the level of a 10-year-old child.

The defendant gatekeeper physician alleged that the symptoms of acute mountain sickness and viral meningitis are similar until the loss of speech occurs and that she did not develop encephalitis until after discharge. The jury verdict for $3.7 million was allocated between the gatekeeper physician at 72% and the plaintiff husband at 28%

What this means to you: In this instance, it was the physician to whom the case was referred who was found liable, along with the plaintiff's husband. The husband's fault was based on his failure to insist on more timely care, but the majority of fault fell on the physician. In Colorado, the hospital's policy to have emergency cases immediately referred from the emergency physician to a gatekeeper physician relieves the hospital and its employed physicians of liability.

According to Michele Bellmore, senior risk management consultant at Sinai-Grace Hospital in Detroit, a hospital, at least in some states, has potential exposure based on the theory of vicarious liability when it assigns the patient a physician upon admission.

Bellmore also expresses concern that the hospitalist failed to obtain a neurological consult before discharging the patient and failed to note that the patient's condition had deteriorated significantly. In light of the probable intelligence of the patient, Bellmore says, the hospitalist should have taken notice when the patient could not remember the names of her children. Discharging the patient under those circumstances was problematic, he adds.

In addition, Bellmore notes that the hospital would seem to have exposure because the nursing staff either failed to notice and act upon the patient's significantly deteriorating condition or failed to note the deteriorating condition and actions taken in the chart. Bellmore also states that the hospital may have exposure based on negligence in the credentialing of the hospitalist.


Joyce Bowman and Sonny Bowman v. Frank Becky, MD, U.S. District Court, District of Colorado, Case No. 96-B-2583.