Physician Legal Review & Commentary: Failure to diagnose meningitis leads to stroke, subsequent brain damage, and a $28.5M verdict
Failure to diagnose meningitis leads to stroke, subsequent brain damage, and a $28.5M verdict
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Christopher U. Warren, Esq.
Associate
Kaufman Borgeest & Ryan
Parsippany, NJ
Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL
News: A 10-month old infant presented to defendant hospital with complaints of a persistent fever. He was treated by two doctors, who were also co-defendants. The doctors ordered a spinal tap, but misdiagnosed the presence of bacterial meningitis. As a result, the infant suffered a stroke, which caused severe brain injuries. A jury awarded the infant and his mother $28.5 million, which included a $12 million award for non-economic damages. Florida law places a limit on non-economic damages, thus the $12 million award may be reduced to $1 million. Additionally, the doctor who the jury found mostly liable did not have medical malpractice insurance. Under Florida law, this doctor may be liable to pay only $250,000 of her share of the verdict.
Background: In 2006, a 10-month old infant was presented to defendant hospital with complaints of a persistent fever. He was treated by two doctors, who ordered a spinal tap. The doctors did not initially diagnose the meningitis after they reviewed the spinal tap, and therefore no treatment for it was provided. The infant subsequently suffered a stroke, which destroyed three of the five lobes on the left side of his brain.
The infant, who is now a 7-year-old boy, has the mental capacity of an 18-month-old, and will probably remain that way for the remainder of his life. He wears diapers and is unable to talk. He also suffers behavioral disabilities, which include punching his head and banging it against the wall.
The infant's mother, individually and on behalf of the infant, sued the hospital and both doctors. She alleged the defendants failed to diagnose the bacterial meningitis on the spinal tap's results and failed to give her son the treatment that could have cured him. As a result, her son suffered a stroke and subsequent brain damage, she claimed.
At trial, the plaintiff's expert opined that prompt treatment with antibiotics would have successfully treated the infant. The doctors alleged that they eventually diagnosed and treated the meningitis. And the doctors alleged that the infant was "beginning to respond well" to the treatment and that the stroke was a "surprise."
The plaintiff sought recovery for medical expenses, and past and future pain and suffering. The jury found that the doctors departed from the standard of care and returned a verdict for $28.5 million against them. It found one doctor 75% liable and the other doctor 25% liable. This split means the doctors would be responsible to pay roughly $21.3 million and $7.1 million each, respectively. The hospital reached a tentative settlement with the plaintiff for a nominal amount.
The jury's verdict included a $12 million award for non-economic damages. While current Florida law places a cap of $1 million for such non-economic damages in medical malpractice cases, the constitutionality of this law is before the Florida Supreme Court. As such, the plaintiff may be entitled to recover the full non-economic damage award. The doctor who was found 75% responsible, however, had no medical malpractice insurance. Under Florida law, she may only be responsible for $250,000 of her portion of the verdict.
What this means to you: Any time an untoward outcome involves a child, there is a lot of emotion in response, regardless of the etiology. This outcome is tragic and affects more than just the child/patient.
Working with the facts we are given here, there are many questions raised that might give us a more complete picture. The facts we are given here indicate the two physicians who attended to this infant focused appropriately on ruling out meningitis, as the presenting sign and symptom was a persistent elevated temperature (fever). The appropriate meningitis diagnostic test, a cerebrospinal tap, was done. We are told the doctors reviewed the spinal tap and made a decision that meningitis was not the diagnosis. What was documented in the record to support their diagnostic decision?
Here is where some of our questions arise. First, why were there two physicians? Were both caring for the child at the same time, or did one call in the other for assistance? Second, what were the specialties of these two physicians? Was one the child's pediatrician or the pediatrician on call, and/or was one the emergency department physician. If so, was he/she a pediatric emergency department physician? Is the emergency department medical care provided through a contracted group? Does this hospital have a designated pediatric emergency department and pediatric trained medical and nursing staff? Are either of these two physicians employees of this hospital?
Another question is, what does it mean that the two doctors reviewed the spinal tap? Did they rely on the absence of cloudy spinal fluid to determine whether it was meningitis? Was a gram stain done? Did the laboratory do a stat review of the specimen? What was the final laboratory report? What was being done to reduce this child's fever while in the emergency department? What were the other physical signs or symptoms exhibited by this child, and how were they evaluated by these two physicians? What was the jury's reasoning for the 75/25% distribution of liability?
At this point we are discussing a diagnosis of meningitis, based on the facts and information we are given here, that allegedly eventually lead to a significant, unexpected stoke. However, we are told this meningitis diagnosis eventually was made. If so, by whom? When? And was it bacterial or viral? If it was viral, we know antibiotics would not have been effective and might have been detrimental in some situations. Much literature has been distributed to educate the public and the medical community about the result of prescribing antibiotics for viral infections or other conditions. This literature states that the symptoms of viral infections treated with antibiotics will recede on their own. These prescription might have contributed to the increasing antibiotic resistance of many bacterial organisms, thereby reducing the "weapons" we have to fight some infections.
We are told that the child was treated for meningitis, but the timeline does not tell us what the treatment was or when the treatment began. We are told the child was "beginning to respond well," but we are not told the relationship of these events to the untoward, unexpected massive stroke this child experienced. Without this information, we cannot opine whether the treatment would have been effective in preventing this outcome if it had been initiated earlier. Additionally, the lack of diagnosis, bacterial or viral, is a critical omission from this discussion. However, even with these many unanswered questions, there are many steps that could or should be taken to prevent recurrences of such events in the future.
The untoward outcome would have been promptly reported to the hospital risk manager, who should have responded rapidly, and the physicians should have notified their insurance carrier. In this case, we are told that only one of the two physicians carried medical malpractice insurance. It is suggested that, even when a physician/surgeon carries no or low limits of medical malpractice insurance, they have identified a medical malpractice defense attorney to contact in instances such as this one with substantial untoward outcome. In Florida, in addition to The Joint Commission standard, there are statutory requirements governing disclosure of untoward events to patients. This is such a case in which a disclosure meeting with the family of this infant should be coordinated by the hospital risk manager. The meeting should include the family, the two physicians and an emergency department nursing representative. However we do not know where this child was located when the stroke occurred, so the nursing representative or bedside nurse, if not in the emergency department, also should be included.
This case should be thoroughly investigated by the hospital risk manager and the case should be referred to the medical staff for a peer review and proper action based on those findings. In addition, a root cause analysis should be undertaken, coordinated and facilitated by the hospital risk manager. The results of this root cause process should be shared with the medical staff. Steps also should be taken to implement findings that "tighten" the current processes that may prevent recurrences. In addition, the emergency department, pediatric, neurology, and infectious disease medial staff should collaborate in reviewing the process of evaluation, diagnostic steps, and tests and treatment of pediatric potential meningitis diagnoses. All emergency department, pediatric, and neurology physicians should be educated to the revised or confirmed critical pathways developed as a result of this collaborative review.
Reference
Palm Beach County (Florida) Civil Court, Action No. 502008CA026517XXXXMB.
News: A 10-month old infant presented to defendant hospital with complaints of a persistent fever. He was treated by two doctors, who were also co-defendants.Subscribe Now for Access
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