MEDICOLEGAL ISSUES Associate Editor: Steven M. Selbst, MD

Pediatric Emergency Medicine Legal Briefs

(Pediatr Emer Care 2015;31: 373–375)

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child born in May 2011 was treated by Virginia pediatricians from birth and was seen regularly in the office for routine well checks and sick visits.1 At 3 months of age, the infant began attending a day care center full time. At 7 months of age, she was diagnosed with respiratory syncytial virus and responded to symptomatic treatment. Just before her first birthday, she was brought to the pediatrician’s office because of labored breathing. She exhibited a barky cough, moderate stridor, retractions, and wheezing. She was diagnosed with croup and wheezing and was treated with albuterol by nebulizer in the office. She improved and was prescribed a 3-day course of oral steroids (prednisolone) and was given the first dose in the office. Instructions were given for her to be returned to the office the next day. When she returned, her symptoms had only slightly improved, and the parents were told to follow up if stridor was present at the completion of the steroids or if respiratory distress developed. Five days later, the child was brought back because of continued congestion, wheezing, and a barky cough. Mild stridor and mild wheezing were found, but the child was playful. The steroid was continued for another 5 days, the albuterol was continued, and budesonide was added. The mother was told to call the office if the respiratory symptoms worsened or did not improve in 2 to 3 days. A week later, 3 days after the child’s first birthday, the child went to the pediatrician’s office for her well check. No stridor, barky cough, or retractions were reported by the parent, nor found by the pediatrician. The child was noted to have an ear infection. Instructions were given to return with the child in 2 weeks. Eight days later, the child developed respiratory distress while at day care and died.

From the Division of Emergency Medicine, Nemours/ Alfred I. duPont Hospital for Children, Wilmington, DE; Sidney Kimmel Medical College, at Thomas Jefferson University, Philadelphia, PA. Disclosure: The author declares no conflict of interest. Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved. ISSN: 0749-5161

An autopsy revealed a 5-cm rhabdomyosarcoma in the retropharyngeal space. The mass could not be detected externally or on oral examination, as it began 0.5 cm below the epiglottis and ended in the chest just above the carina. The pathologist opined that the malignant mass had compressed the child’s airway, causing her death. The family sued the pediatricians and claimed they were negligent in not ordering neck and chest x-rays or referring the child to a pediatric otolaryngologist when her barky cough and stridor had not resolved in the usual 3- to 5-day period. They also claimed that x-rays or referral would have led to a diagnosis and treatment and avoided the girl’s death. The defendant pediatricians claimed that the child’s improvement with treatment supported their working diagnoses and that her clinical presentation did not suggest an obstructed airway. The doctors also claimed that the rhabdomyosarcoma was in a rare location and had an unfavorable prognosis. A jury found in favor of the pediatricians. Fairfax County, VA Circuit Court, case no. 2013-11460.

EDITOR’S COMMENTS

Obviously, “not all that wheezes is asthma,” and not all stridor is due to croup. After reading this case, many will opt for a chest x-ray in every patient with wheezing, who is not known to have asthma, and perhaps a lateral neck film for all those with stridor. However, physicians are constantly reminded to not obtain radiographs on every child with a presumed respiratory infection. The final diagnosis here was clearly unexpected. From what is known of this case, the pediatricians acted as most reasonable physicians would have. It seems reasonable to observe the child as long as there is no worsening distress. It is not known if this child exhibited worrisome findings that justified a radiograph or further studies.

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13-year-old boy was taken to a Florida emergency department (ED) in August 2009 with complaints of headaches and lethargy.2 He had a history of extreme prematurity and had 2 ventriculoperitoneal shunts placed at birth. In the ED, a head

computed tomography (CT) scan was performed and interpreted as showing no evidence of hydrocephalus. The teenager was discharged from the ED. His symptoms continued, and 3 days later, he was taken to another ED with continuing headache and a history that his eyes rolled back, and he was unresponsive for 30 seconds. A head CT and a shunt series were performed, and no acute intracranial abnormality was found. The boy was again discharged from the ED. The shunt series and CT scan were later reread by a radiologist, who entered a discrepancy report as “shunt malfunction cannot be excluded” and notified the ED. The teenager’s symptoms continued, and he went to his pediatrician 6 days after the second ED visit, and he was then referred to a neurologist. About 9 days later, he was transported by ambulance to a local medical center and diagnosed with a shunt malfunction. He was later transferred to a facility that had a pediatric neurosurgeon, but the teenager had a cardiorespiratory arrest. He was airlifted to another facility, where it was determined that he was brain dead. The boy’s family sued and claimed that a timely transfer was not made. They also claimed that they were not told about the discrepancy report regarding the CT scan. A jury found in favor of the emergency physicians and the pediatrician. Palm Beach County, FL Circuit Court, case no. 502011CAA007748.

EDITOR’S COMMENTS Obviously, the ED physicians relied on the radiology reports of the CT scans. Perhaps, at the second ED visit, a consult with neurology/neurosurgery would have been wise, even with a normal CT scan. Certainly, after the radiologist placed a comment (“shunt malfunction cannot be excluded”), one could argue the ED staff was responsible for acting on that information. It would have been wise to contact the family and make sure the patient was doing well. Had they done so, the ED would likely have been notified the boy was still symptomatic, and they may have told the family to return immediately.

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young male from Maryland was injured when his left leg was struck by a collapsible building barrier.3 The patient

Pediatric Emergency Care • Volume 31, Number 5, May 2015

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Pediatric Emergency Care • Volume 31, Number 5, May 2015

Legal Briefs

believed that he had dislocated his knee and that it had relocated itself. He was taken to a local hospital ED where he was examined by an emergency physician and a physician’s assistant. The emergency physician ordered x-rays, which showed no fracture, and no dislocation was found by examination. The patient was diagnosed with a knee strain, and he was discharged from the ED after about 2 hours. The patient later had increasing pain in his left knee, with swelling, numbness, and tingling of the leg below the knee. After 2 days, he went to a physician, where examination revealed no pulse in his leg. He was sent back to the ED, and he was immediately admitted, and vascular surgeons were consulted. A magnetic resonance imaging scan revealed that all of the ligaments in the left knee were shredded. A vascular surgeon performed a 13-hour surgery in an unsuccessful effort to save the patient’s leg. The patient was transferred to another facility, where his foot was initially amputated in an effort to save his leg. He later had an above-the-knee amputation of the leg. The patient sued the providers in the ED and alleged negligence. The ED nurse and the hospital were dismissed, and the matter was tried against the physician and physician’s assistant who evaluated him at the first ED visit. The patient claimed that failure to diagnose a serious vascular injury caused a delay in treatment and loss of the leg. The defendants claimed that it was not possible for them to have recognized a vascular injury based on the history given and their examinations. A jury found in favor of the patient and awarded him $5.2 million. A high/low agreement had been entered during jury deliberations, and the patient was to receive $1.5 million under that agreement. Baltimore City, MD Circuit Court, case no. 24C12008071.

EDITOR’S COMMENTS The ED staff argued that the history and examination did not point to a vascular injury, and their actions seem reasonable. Perhaps their findings were not well documented in the medical record. It would be very difficult to defend this case if the ED staff did not carefully document their findings and that a normal pulse was present after the injury.

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3-year-old girl was evaluated by a dentist in Hawaii in December 2013 for extensive dental work, which was to include 4 root canals and multiple cavity fillings.4 The child was administered several drugs in preparation for the procedure,

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including meperidine, hydroxyzine, and chloral hydrate, as well as nitrous oxide and an injection of lidocaine with epinephrine. Following the lidocaine injection, the child became unresponsive and developed cardiopulmonary arrest. She never regained full consciousness and died a month later, in January 2013. An autopsy determined that it was “likely” that she “died as a result of the sedatives and local anesthesia given at the time of the dental procedure.” The death was classified as an accident. The autopsy report included the description “the oral cavity has native dentition in good repair.” The child’s family sued the dental office and alleged negligence in administering excessive dosages of sedatives and failure to prepare for or respond appropriately to the cardiac arrest. They claimed that the child’s vital signs were not checked for 26 minutes. A confidential settlement was reached. First Circuit, HI Circuit Court, case no. 13-1-3376-12.

EDITOR’S COMMENTS There are many details of this case that are missing, and it is not clear if the child’s cardiopulmonary arrest was due to a medication error. On the surface, it seems like she received a lot of medications. Also, it is not known if the dental office and staff were adequately prepared for an emergency related to sedation. Apparently, the autopsy implied that the patient may not have needed the dental work in the first place.

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12-year-old New York boy underwent intravenous administration of methylprednisolone in February 1998.5 The medication was administered by a nurse at the boy’s residence. The boy developed immediate respiratory difficulty and also experienced a seizure, later diagnosed as anaphylactic shock. An ambulance was called, and paramedics arrived about 6 minutes later. The patient was in cardiopulmonary arrest upon their arrival. The paramedics did not have the proper equipment to treat the boy, and another ambulance was called. The patient’s mother suggested that the boy be transported to a nearby hospital, but the paramedics waited 20 minutes for the other ambulance to arrive. The patient was resuscitated and was given an injection of epinephrine. He suffered permanent brain damage with paralysis and an inability to speak. The boy and his family sued and reached a confidential settlement with the nurse prior to trial. The matter proceeded to trial again the emergency medical services (EMS) company. The family argued

that the child should have been promptly transported to a hospital, instead of waiting for another ambulance. The defendant EMS company claimed that the boy’s injuries were due to the injection given by the nurse and the nurse’s failure to address the patient’s reaction to the injection. They claimed that the paramedics could not have reversed the injury’s effects. A jury found in favor of the patient and his family and awarded them $172,375,000. This included more than $99 million for future medical costs, $25 million for past pain and suffering, and $40 million for future pain and suffering. Bronx County, NY Supreme Court, index no. 22234/98.

EDITOR’S COMMENTS The award here is staggering. Anyway, it is not entirely clear why the patient arrested. In retrospect, the tragedy may have been avoided if the nurse or initial responding EMS had been able to administer intramuscular epinephrine to the patient. The parents have a good argument—rapid transport to a hospital even without prehospital treatment would have been a better option than waiting 20 minutes for another team to arrive.

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14-year-old Michigan boy was taken to a local hospital in October 2010 after complaining for several days of abdominal pain, which radiated to his right testicle.6 The emergency physician and a resident ordered blood tests and an ultrasound of the testicles. Results of all tests were reportedly normal. The teenager’s pain subsided during the ED visit, and he was discharged to home with instructions to see his pediatrician in 2 days and return if there were any problems. The patient was seen by his pediatrician almost a month later for his annual checkup, and examination at this visit was normal. The pediatrician was aware of the previous ED visit. In July 2011, the patient was kicked in the groin while jumping on a trampoline. He had immediate, excruciating pain in his right testicle. He went to an ED 24 hours later. At this ED visit, an ultrasound revealed testicular torsion. The teenager underwent surgery to remove the right testicle. The patient sued the ED where he was initially treated in October 2010 and claimed that he had suffered intermittent testicular torsion at the time of the ED visit. He argued that he should have been referred to a urologist for further testing and treatment, which would have avoided the loss of the testicle. He also claimed that he no longer participated in sports and suffered disfigurement as a result of the

© 2015 Wolters Kluwer Health, Inc. All rights reserved.

Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved.

Pediatric Emergency Care • Volume 31, Number 5, May 2015

surgery. The defendant hospital claimed that the boy’s pain during that visit was mainly abdominal and that an ultrasound of the testicles was normal, giving no evidence that testicular torsion was present at the time. The hospital argued that the testicular problem was due to trauma and also claimed that the patient had suffered a painful testicular episode at the age of 12 years, which the ED physician had not been informed about. The hospital additionally claimed that the patient’s fertility and sexual experiences would not be affected by the loss of the testicle and that his sports activity was not hampered, as he received his best grades in school in his physical education classes. A jury found in favor of the hospital. Oakland County, MI Circuit Court, case no. 2013-131628-NH.

EDITOR’S COMMENTS The ED staff in this case had a strong defense. The boy’s pain improved in the ED, and the normal ultrasound supports the management of the emergency physician. The patient was well for several months after the ED visit, with at least 1 normal examination by his pediatrician. It seems unlikely that he had testicular torsion in October 2010.

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n 18-month-old Ohio infant was examined by a pediatrician in January 2012.7 The doctor had not seen the child previously. The mother told the pediatrician that the infant vomited 2 days earlier and had a temperature of 103.5°F that day. The day prior to the examination, the child had diarrhea, and his temperature went up to 104.7°F. The infant was given acetaminophen prior to the doctor’s appointment, but had a temperature of 101.8°F at the time of the visit. The pediatrician noted a pink rash, mild cough, red throat without exudates, clear lungs, normal ears, and a normal cardiac examination. The pediatrician diagnosed a viral syndrome and told the mother to call or return to the office if the infant began to vomit or if her temperature increased. The child appeared to be improving the following morning. However,

after waking from a nap, the mother noted the child was covered with purpura. She called 911, and the child was transported to a children’s hospital, where she died. Group A Streptococcus sepsis was determined to be the cause of death. The patient’s family sued the pediatrician and claimed the doctor was negligent in failing to take an adequate history and failing to perform a proper physical examination. The family claimed that diagnostic testing including blood studies should have been sent. They maintained that a blood test would have indicated a bacterial infection, and medication could have been administered to prevent the death. The defendant pediatrician maintained that there was no indication of a bacterial infection at the time of the examination, and a blood test would not have revealed the bacterial infection. The doctor claimed that the infant had a secondary bacterial infection of group A Streptococcus superimposed on a viral infection, which was not present when the child was seen. A jury found in favor of the pediatrician. A posttrial motion was pending. Hamilton County, OH Court of Common Pleas, case no. A1105335.

EDITOR’S COMMENTS This is a tragic case, but it is not clear from the information given that the pediatrician could have or should have done anything differently. The key question is: Did the baby look well or ill/toxic at the time of the initial visit? If he had purpura, all of us would have been very concerned. But without this finding, it is a judgment call as to whether tests were indicated.

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19-year-old girl was evaluated by a surgeon in September 2006 with a history of having had blood in her stool 3 months earlier.8 The doctor diagnosed a healing anal fissure. He did not order a flexible sigmoidoscopy or colonoscopy. In May 2010, the patient went to a gastroenterologist with complaints of bloody diarrhea. A flexible sigmoidoscopy was performed, which identified a 3.6-cm lesion in the

Legal Briefs

rectum, 10 cm from the anus. The lesion was biopsied and revealed a low-grade adenocarcinoma. Imaging studies revealed that the cancer had spread to the lungs and liver. She was diagnosed with stage IV rectal cancer. She underwent extensive treatment including surgical resection, conventional and experimental chemotherapy, and radiation therapy. The teenager died in July 2012. The patient’s family sued the doctor who examined her 4 years earlier. They claimed that the doctor failed to perform an endoscopic examination of the patient’s bowels. They also claimed that if the doctor had ordered a flexible sigmoidoscopy or colonoscopy in September 2006, a polyp or early-stage cancer would have been identified and could have been surgically removed, providing a cure. The defendant physician denied any negligence. A jury found in favor of the patient and awarded her $2,512,179. Wicomico County, MD Circuit Court, case no. 22-C-12-001599 MM.

EDITOR’S COMMENTS This is a very rare diagnosis. There is not enough information available to judge the care provided. The case reminds us not to cavalierly diagnose an anal fissure. Certainly, follow-up is needed to ensure the rectal bleeding has subsided. REFERENCES 1. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:24. 2. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:6. 3. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:7. 4. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:5. 5. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:8–9. 6. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:10. 7. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:23–24. 8. Laska LL. Medical Malpractice Verdicts, Settlements and Experts. 2014;30:5.

© 2015 Wolters Kluwer Health, Inc. All rights reserved.

Copyright © 2015 Wolters Kluwer Health, Inc. All rights reserved.

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