High Payouts Make Missed Meningitis Cases Very Appealing to Plaintiff Attorneys

A patient has flu-like symptoms and is discharged from the ED; shortly afterward, the patient is diagnosed with meningitis and sues the emergency physician (EP) for malpractice. Such cases are becoming rarer due to the decreased incidence of meningitis, but claims that do occur are likely to be settled, says John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland.

This is true even if the EP’s care was entirely appropriate and well-documented, says Tafuri, because of the extremely high payouts associated with meningitis cases. Plaintiff attorneys are more likely to pursue the claim, even if they are uncertain they can prevail.

“If the case is a $5 to $6 million case based on damages, even if the attorney thinks there is only a 10% chance of winning it, they are willing to roll the dice and pursue the claim,” says Tafuri.

According to the PIAA Data Sharing Project, of 75 closed claims involving meningitis in pediatric patients in 2001 to 2010, the majority of cases involved death, major permanent injury, and grave injury. Claims involving major permanent injury had the highest total indemnity of $10.2 million and highest paid-to-closed ratio of 52.4%. Of 48 closed claims involving diagnostic errors, 22 were paid, totaling more than $12 million.¹

Since many EPs only have $1 million of malpractice insurance, there is a possibility the payout will exceed the policy limits. A plaintiff attorney can use that as a negotiating tool to pressure the EP into settling what otherwise might be a defensible case.

“The attorney might say, ‘I’m going to take this to trial if you don’t settle for your policy limit, and if you lose, I’m going to come after your personal assets,’” says Tafuri. “That is a tactic they will take if there is a devastating illness that results in long-term care needs where damages are in the millions.”

Meningitis often presents with non-specific, common signs and symptoms such as fever, headache, vomiting, and poor appetite.

“Missed cases often involve a failure to exclude meningitis, even when it has been considered, as well as a failure to perform timely follow-up to ensure the patient remains clinically stable,” says Jonathan M. Fanaroff, MD, JD, associate professor of pediatrics at Case Western Reserve University School of Medicine and co-director of the Neonatal Intensive Care Unit at Rainbow Babies & Children’s Hospital, both in Cleveland, OH.

Early on, meningitis can resemble flu-like illness. “That is problematic for EPs, particularly for certain kinds in meningitis that can come on very quickly and be devastating,” says Tafuri. “Identifying meningitis can be very difficult at an early stage.”

Tafuri says a typical fact pattern in a missed meningitis claim is a patient who presents to an ED early in the disease process and is discharged without a clear diagnosis.

“The EP is not paying attention to how sick the patient is,” he says. “The patient may be confused, having a severe headache, or not acting the same.”

Patients may also have signs of sepsis, tachycardia, or abnormal blood pressure.

One malpractice case involved a 13-year-old girl who presented to an ED with headache, fever, and vomiting. Nursing notes described the patient as pale and sleepy, and the patient history filled out by the patient’s mother noted stiff neck, change in alertness, and abnormal behavior. The EP discharged the patient with a diagnosis of fever and nonspecific vomiting.

Two days later, the patient was brought by ambulance to the ED, diagnosed with bacterial meningitis, and suffered permanent severe brain injuries. The case settled due to lack of support from experts, who felt that discharging the patient without lab results, cultures, a spinal tap, and intravenous fluids was below the standard of care.¹

Documentation that the patient was re-evaluated in the ED will become important in the event a lawsuit is filed.

“This demonstrates that you didn’t just see the patient for five minutes and then blow the patient off,” says Tafuri. “That is helpful in any claim, but particularly in meningitis claims.”

Of 521 children who were hospitalized with a final diagnosis of meningitis or septicemia in Ontario between 2005 and 2010, 21.9% had repeated ED visits before admission, according to a recent study.²

Documentation of the EP’s thought process allows the EP to demonstrate that meningitis was considered during the initial ED visit. However, stating this outright might become problematic during the course of litigation.

“Sometimes, when you say, ‘I don’t see any evidence of meningitis,’ it looks a little defensive,” Tafuri explains. “The attorney may say, ‘Well, you were thinking of it, that’s why you wrote it there.’”

Instead, he suggests describing the aspects of the patient’s condition that are inconsistent with meningitis presentation, as follows: “There is no change in mental status, no rash, no nuchal rigidity.”

Fanaroff says good documentation of a thorough clinical exam, including pertinent positive and negative findings, education of the patient and family of the importance of close follow-up, and what signs indicate that the patient is getting sicker and needs to be seen immediately, can make missed meningitis claims more defensible.

EPs should have “a low threshold for work-up and early treatment when indicated,” he adds.

Fanaroff says these factors make a missed meningitis claim a strong candidate for settlement:

• Poor documentation, which does not include pertinent negative findings.
• Lack of education of the patient and family with no follow-up plan in place.
• Failure to consider meningitis in the differential.
• Late initiation of treatment after the patient has begun to deteriorate.

It is advisable for EPs to clearly instruct patients with symptoms that could be an early presentation of meningitis, “This may be early in the course of illness. Should your symptoms progress, it is mandatory that you come back for a repeat evaluation,” Tafuri says.

“The importance of that can’t be overemphasized,” he adds. “Don’t tell them, ‘It’s just the stomach flu.’”

REFERENCES

1. PIAA Research Notes. Pediatric conditions: Special focus: Meningitis claims update. February 2012. www.piaa.us
2. Vaillancourt S, et al. Repeated emergency department visits among children admitted with meningitis or septicemia: A population-based study. Ann Emerg Med 2015;65:625–632.

SOURCES

• Jonathan M. Fanaroff, MD, JD, Associate Professor of Pediatrics, Case Western Reserve University School of Medicine, Cleveland, OH. Phone: (216) 844-3387. Fax: (216) 844-3380. E-mail: [email protected].
• John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. Fax: (440) 835-3412. E-mail: [email protected].