Failure to diagnose bacterial meningitis causes infant’s death and $1.7 million verdict
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Patrick Dolan, Esq.
Associate
Kaufman Borgeest & Ryan
Garden City, NY
Leilani Kicklighter, RN, ARM
MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL
Financial Disclosure: Co-Authors Jonathan D. Rubin, Esq., Leilani Kicklighter, Patrick Dolan and Executive Editor Joy Dickinson report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study.
News: A family in Pennsylvania was awarded $1.7 million against an emergency department (ED) doctor who failed to recognize the signs and symptoms of bacterial meningitis resulting in a patient’s death. The patient, 3 months old at the time, presented to the doctor in the ED with a 103 degree fever on Dec. 16, 2007. The patient was released the same day with a diagnosis of a middle ear infection and a prescription for amoxicillin. The following day, the patient’s parents brought her to her pediatrician, who immediately referred her to another hospital’s ED. There she was diagnosed with pneumococcal meningitis. The infection had caused hypoxic brain injury and hydrocephalus. The patient died almost two years later due to complications from the infection.
Background: Parents brought a 3-month-old patient to the ED of a local hospital on Dec. 16, 2007. The doctor recorded the patient’s temperature as 103 degrees. It appears that this note was the extent of the doctor’s documentation. The doctor diagnosed the patient with a middle ear infection and prescribed amoxicillin and discharged her home two days later on the 18th. The doctor did not indicate in which ear he found the infection, nor did he record any signs or symptoms to support his diagnosis. He released the patient to home with her parents the same day.
The next morning, the parents awoke to find the infant cool to the touch, lethargic, and pale, so they brought the child to her pediatrician. The pediatrician immediately transferred her care to a different hospital than the one the patient had been seen at the previous day. She was diagnosed with pneumococcal meningitis resulting in hypoxic brain injury and hydrocephalus. The patient was admitted to the second hospital from Dec.19, 2007, to Jan. 14, 2008.
The patient died from respiratory complications related to the meningitis infection on Sept. 15, 2009. Between Jan. 14, 2008, and Sept. 15, 2009, the patient was seen emergently at various hospitals approximately 10 times. The patient also was seen by other medical specialists with regard to her compromised condition.
The patient’s parents sued the ED physician for medical malpractice on behalf of the patient’s estate. The damages included loss of enjoyment of life, pain and suffering, brain injury, and death. The patient’s attorney argued that the doctor failed to properly assess the patient while she was in the ED. It was argued that the doctor should have, at the minimum, ordered blood and urine tests to rule out a bacterial infection. It was argued that blood and urine tests were indicated even if patient was suffering a middle ear infection. It was argued that if the doctor had performed the blood or urine tests, the results would have been abnormal and prompted further testing, including a lumbar puncture for meningitis. The patient’s attorney also argued that the doctor failed to provide proper discharge instructions. The doctor instructed the patient’s parents to return "as needed." It was argued that the standard of care was to have patient return within 24-48 hours. The patient’s expert opined that if the doctor had properly evaluated the patient, swift treatment would have prevented the catastrophic injuries she suffered.
The doctor’s emergency medicine expert opined that at the time he evaluated the patient, there was no indication that she was suffering from a pneumococcal meningitis infection. He further opined that the middle ear infection posed no substantial risk for the patient to develop a bacterial meningitis infection. In fact, the doctor’s pediatric expert opined that the patient began suffering from the infection after the ED doctor’s care and that there was no reason for doctor to have foreseen her clinical course.
The jury found the doctor liable for medical malpractice for failing to diagnose the patient with meningitis, which caused hypoxic brain injury and eventually her death. Accordingly, the jury awarded the patient’s estate $1.72 million. Her family was awarded $860,000 for future lost earnings and $860,000 for her pain and suffering.
What this means to you: In this case, we have a 3-month-old infant who presents at the ED with a high fever of 103 degrees. In this scenario, we have no description of other presenting signs and symptoms. It was not until the second ED admission, at a different hospital, that the child was diagnosed with pneumococcal bacterial meningitis.
Meningitis in an infant and toddler is difficult to diagnose as the signs and symptoms can be thought to be something else. The information we are given here indicates that the only signs, symptoms, or other information documented by the ED physician who saw this patient was the temperature of 103, his diagnosis of middle ear infection, and the order for amoxicillin. With this sparse information, it is difficult to opine if the infant should have been kept overnight for observation, whether a spinal tap should have been done, or if blood and urine samples should have been obtained. Certainly in all inner ear infections, a spinal tap is not warranted. However, in this case, was the eardrum protruding? Was the infant pulling at the ear? Was the infant fussy and, if so, when did the fussiness begin? Did the infant have signs and symptoms of a cold? All this information might have assisted in making a more definitive diagnosis. This untoward event emphasizes the necessity of a thorough history and physical and thorough documentation, and it shows how lack of such documentation leaves so much to question.
The medical record has many uses, but the first and most important use is for continued or continuity of patient care between caregivers on different shifts and days or in different settings. Backup documentation for billing and defense in a legal matter are secondary to the patient care aspect. The lack of more detailed documentation raises the question of whether this was a matter of missed diagnosis or mis-diagnosis.
The physician’s documentation of his physical exam and discussion with the parents as to the onset of signs and symptoms was sorely lacking. Also, the discharge instructions only indicated return "as needed." Infants’ signs and symptoms can be unrecognized by new parents or because they often are subtle. There is no documentation that the physician or nurses spent any time with these parents discussing the diagnosed "ear infection" and directed them to return immediately if certain signs or symptoms became evident. Were the parents advised to monitor the infant’s temperature during the night? Was the infant given a dose of amoxicillin while in the ED, or was a prescription for oral medication given? The discharge nurses are the last resort as they teach and go over the discharge instructions with the parents. As pediatric nurses, if they think something should be added, it is their role to bring it to the physician’s attention.
If a hospital does not have a section or separate designated ED for pediatric patients staffed with pediatric physicians and pediatric nurses, the hospital and emergency medicine department should take steps to provide ongoing in-service and support to all ED staff regarding diagnosis, treatment, and dosages for pediatric patients.
The risk management and patient safety issues raised by this particular untoward event are complicated by the HIPAA privacy issues. In particular how would the first hospital’s ED or risk manager be made aware of the infant’s admission to the second hospital on a timely basis without breaching the privacy rules? If the first hospital isn’t made aware on a timely basis by the second hospital’s ED or risk manager, the steps to assess the situation and implement steps to prevent a recurrence cannot be undertaken until the facts are "cold." Unless the infant’s pediatrician who referred her to the second hospital notified the hospital, it might have been only with the request for records or first notice of intent to bring a legal action that the first hospital was made aware and could begin its own investigation.
Based on the facts we are given in this scenario, the risk manager should have been notified immediately by whoever first was made aware. The risk manager should have obtained statements and interviews of those nurses, physicians, and other staff members who were involved in the care of this infant. Upon being made aware of this untoward event, the physician should have been notified to advise his malpractice insurance carrier, and likewise, the hospital should have notified its insurance carrier of a potential claim.
The hospital should undertake a review of a sample of medical records of all ED admissions. It should include all ED pediatric admissions under the age of 5 with presenting complaints of high temperature, if available, and all those with discharge or admitting diagnosis of inner ear infection or meningitis (viral, bacterial, or rule out). The focus of this review is to determine if there is a trend or pattern in the lack of documentation among the nurses and physicians and to determine the acceptability of the overall documentation found in the charts reviewed.
This particular physician should be referred for a medical staff peer review as it relates to this case. Consideration should be given to requiring this particular physician to attend an approved chart documentation course.
A root cause analysis should be undertaken, guided by the risk manager and the ED medical director, to determine if this was a scenario that can be prevented from recurring. Hospitals that do not have a separate pediatric ED should evaluate how a trained pediatrician can be available 24/7 to confer in situations such as this one when staff are faced with signs and symptoms that are known to be difficult to diagnose. In the alternative, and in addition, steps should be taken to hold mandatory in-service sessions with all ED nurses and physicians on aspects of pediatric emergency care and diagnosis and on documentation. The hospital might consider a protocol to require a second opinion from the ED director or supervising physician in cases with certain diagnoses or signs and symptoms before discharge.
The ED quality improvement program should include regular review of physician and nursing documentation on a timely basis. The lack of documentation as reported in this particular situation does not meet the acceptable standard of care.
Reference
C.P. Berks No. 09-9629, June 14, 2013.
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