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Pediatric professional liability: Err on the side of caution
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The facts below are derived from a closed medical liability claim. Our goal is to highlight the practical points that can be learned from this example, so that clinical practice is safer and more rewarding.
A mother took her 2-year-old son to the ER of a large urban community hospital, because the child had difficulty walking. A physician’s assistant evaluated the child and discussed findings with the ER attending. The medical history was checked off as non-contributory. The mother denied any trauma, although the child went to daycare where many of the children recently had colds.
On examination, the child was afebrile and in no distress. He was able to stand next to his mother, but refused to walk. No evidence of any trauma was found. Passive movement of the right hip produced slight discomfort only in internal rotation. Hip radiographs were negative. The ER physician diagnosed either hip synovitis or some minor injury that was not recollected, and asked for an orthopedic consultation. The orthopedic surgeon looked at X-rays, examined the child and agreed with these findings.
The patient was discharged, to be observed by the mother, and to take anti-inflammatory medication, with follow-up in a week. The child came back to the ER in 72 hours, with vomiting, decreased oral intake and lethargy. The ER attending noted the child was febrile and tachycardic, with cool extremities. A fluid bolus improved the child’s perfusion and heart rate. The mother pointed out that the child was still not walking, and the ER physician re-consulted the orthopedic surgeon.
The orthopedic surgeon noted a white blood cell count of 13,000 and an erythrocyte sedimentation rate of 24. No tenderness was elicited on right hip examination. Diagnosed with dehydration from possible viral gastroenteritis, the patient was admitted to the pediatric service. The pediatrician found the child had not received routine immunizations, and that his right leg lay externally rotated. The orthopedic surgeon was re-consulted due to concerns about a septic right hip. Hip aspiration showed leukocytosis in the fluid, and antibiotics were started, pending cultures.
Lawrence H. Brenner
The patient deteriorated overnight, despite hydration, and developed seizures. CT work-up showed brainstem edema and inflammation. Lumbar tap showed meningitis with gram-negative bacteria in the cerebrospinal fluid. The right hip underwent urgent surgical decompression, with return of purulent fluid. After aggressive management in the intensive care unit and multiple antibiotics, the clinical picture improved. However, the patient was left with permanent hearing loss, seizures, spasticity and hydrocephalus requiring a ventriculo-peritoneal shunt. These outcomes had occurred from systemic sepsis and its treatment.
Legal proceedings
The lawsuit filed against the orthopedic surgeon alleged a failure to care for the child in a reasonably prudent manner. Specifically, a criticism was that the surgeon had too narrowly focused on the septic hip. Plaintiff parents asserted that: (1) the surgeon had a broader duty to identify the infectious origins of the septic hip, which they contended was from meningitis; and (2) the surgeon had a duty to recognize that hip infection could become more widely disseminated; and (3) there was no meaningful clinical management plan to monitor and follow the child so that timely intervention could avoid the serious sequelae that occurred; and (4) the surgeon negligently failed to anticipate and appreciate the toxicity of their child’s condition in the ER.
The defense rebutted that the septic hip was correctly and timely diagnosed, with proper initiation of antibiotic treatment and surgical intervention at the proper time. Also, the defense contended that delays in the diagnosis of meningitis occur even when pediatric patients are competently treated. The surgeon also asserted that the expectations imposed upon him by the plaintiffs were beyond what is reasonably expected of an orthopedic surgeon. With the parties failing to reach a settlement, the case proceeded to trial. Before the jury verdict, parties reached an out-of-court settlement for a confidential amount, leading to dismissal of the lawsuit.
Overview
Pediatric orthopedic professional liability claims can be especially risky for orthopedic surgeons. The conventional view is that jurors’ sympathetic response to a pediatric plaintiff may prevent them from critically assessing the clinical issues raised by the facts and circumstances of the case. This view may contribute to a sense of futility by the surgeon that limits his or her ability to develop strategies for reducing pediatric professional liability losses.
A court trial related to medical malpractice is an adversarial contest. When an adult is the plaintiff, much of the trial can focus on him or her. Defense counsel can raise a number of questions that focus on the plaintiff. For example, did the injury that led to treatment occur because of the plaintiff’s own careless act? Did plaintiff comply with the orthopedic surgeon’s instructions? Has the plaintiff overstated the injury, creating an impression of an overreaching plaintiff? Has the plaintiff filed claims or lawsuits in the past? Was the plaintiff suffering from a longstanding pre-existing condition that is a more likely cause of the disability than any alleged failures in orthopedic care?
These powerful litigation dynamics are usually absent in pediatric professional liability lawsuits. Children are unlikely to misrepresent or exaggerate their injuries. The usually do not have extensive pre-existing illnesses that contribute to the functional outcome of their care. Finally, the issues of compliance usually deal with the parents’ conduct, which cannot be imputed to the child through legal principles such as comparative or contributory negligence. As a result of these considerations, the focus of a pediatric medical malpractice case is primarily on the conduct of the treating surgeon.
The legal standards for determining negligent professional conduct consist of determining whether the orthopedic surgeon met the standards of knowledge, skill, diligence, and care in clinically managing the patient’s condition. Although these are consistent standards, every case must be judged within the context of a variety of clinical factors, and factual details that are peculiar to each case.
With a pediatric plaintiff, the jury can imagine an unlimited future potential that has not yet been limited by adult experiences. Therefore, what may be deemed reasonably prudent treatment for an adult can be interpreted differently by jurors when the plaintiff is a minor. A delayed or missed diagnosis leading to a catastrophic outcome will likely afflict the child for the duration of his or her life. This can have a negative impact, in the jury’s mind, on the child’s capacity to fulfill this perceived unlimited potential.
B. Sonny Bal
Learning principles
Many orthopedic surgeons encounter pediatric patients in clinical practice, particularly in the ER setting. Given the substantial exposure that orthopedic surgeons have in pediatric malpractice cases, the following four principles can help reduce or eliminate pediatric malpractice losses:
- Use a heightened standard of documentation. Make certain that the record reflects the reasoning behind critical judgment decisions made in providing treatment to the pediatric patient. The statute of limitations is substantially longer for children than adults. Nearly every state treats childhood as a legal disability, and accordingly extends the statute of limitation until the child becomes an adult. Consequently, pediatric claims can be filed as late as 21 years after the clinical events that gave rise to the claim occurred.
Courts are deferential toward physician judgment. In the classic medical malpractice case of Pike v Honsinger, the court had said “The rule requiring him to use his best judgment does not hold him liable for a near honest error of judgment.” The judicial philosophy articulated in Pike has remained unchanged, and is also echoed in the observation of author Sherwin B. Nuland, MD, who wrote that “…judgment is difficult to learn to apply, and even to recognize; medicine has few certainties- the ancients correctly called it the Art.”
Given the time that can pass between treating a child and the filing of a lawsuit, the orthopedic surgeon may not recall the patient, the circumstances that surrounded the care rendered or even the standard of orthopedic care as he or she perceived it at the time. To take advantage of the extensive latitude given to physicians and surgeons in judgment decisions, the surgeon must be able to credibly reconstruct his or her clinical reasoning years after decisions were made. That is why documentation of the facts, and more pertinently, of the thought process and decision-making at every time-point in the care of a child is so important.
- Ensure that communication is sufficient. Make certain parents or guardians of pediatric patients understand critical information that is either sought or conveyed. Communication in pediatric care invariably involves the family as an intermediary. The orthopedic surgeon will instruct the family of the pediatric patient on follow-up care. Consequently, it is imperative that the orthopedic surgeon ensure that the family understands and processes critical information in a way that will protect the child’s health and well-being.
A classic pediatric urological case illustrates how the nuances of communication can sometimes profoundly affect pediatric patient care. The parents of a 2-year-old child fed their child at 6 p.m. before going out for the evening. They instructed the babysitter to put the child to sleep at 8 p.m. and not to feed him. When the parents returned at midnight, the child was in obvious pain and crying hysterically. The parents took him to the ER, and on the way, the mother gave the child a bottle to comfort him. When the child was seen by a physician at 2 a.m., the emergency room doctor diagnosed a testicular torsion. The parents were asked, “When was the last time you fed your child?” The parents responded, “[At] 6 p.m.” The child was taken to surgery where the anesthesiologist elected not to intubate him based on the history that nothing was consumed by mouth for 8 hours.
The child aspirated during surgery and became profoundly neurologically impaired. The ensuing lawsuit focused extensively on whether the wording of the question regarding the child’s last feeding was sufficiently clear to encompass the attempt to calm the child with a bottle on the way to the ER. In pediatric cases particularly, have the parents repeat the instructions as they understand them, and give the parents a written copy of your instructions, in addition to placing the instructions in the medical record.
- Have a low threshold to obtain other consultations. For clinical purposes, children are not smaller adults. The physiology of children differs from that of adults, and direct communication with the child may not be helpful. Accordingly, the orthopedic surgeon should be diligent in ordering additional consultations, specifically that of a pediatrician, even if the ER physician has not requested such consultation.
Infectious processes may disseminate more rapidly in children than in adults, and systemic sepsis can manifest dramatically. If any questions or concerns arise while treating pediatric patients, the surgeon should not hesitate to seek advice or consultation from the infectious disease specialist. Mitigating risk from limitations in communication that are inherent in pediatric cases requires that the surgeon obtain help from other services earlier, and with greater frequency than would apply to an adult patient. A delay in initiating treatment in certain pediatric conditions can result in serious and permanent injuries. Having multiple providers engaged in the diagnosis and care of the pediatric patient can bring in different perspectives, reduce risk, and improve the quality and safety of care.
- Interpret clinical data with caution. A child may not be able to give any history or information about the medical condition, and information from parents or guardians may not be accurate or complete. Laboratory data may be misleading or incomplete, especially if the clinical condition of the child is rapidly changing. Consider whether the story of a traumatic injury fits the objective evidence that you can gather. An adult who is abusing a child may be skilled at misleading clinicians or providing inadequate or incomplete information about an injury.
Most importantly, interpret incomplete information from the history, physical examination, parental input and laboratory tests in light of all possible differential diagnoses. This should be done in consultation with a pediatrician; this team approach will improve care and reduce risk. Where incomplete data nonetheless suggest that a potentially serious condition may be developing, such as malignancy, sepsis or child abuse, admit the child for observation or refer the case to a tertiary pediatric institution. Given incomplete information, the inability of the child to communicate sufficiently, and inherent gaps that can occur in communications with the family, err on the side of caution when dealing with pediatric orthopedic cases.
References:
Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898).
Nuland SB, Doctors-The Biography of Medicine. Vintage Books, second edition, 1995, page 12.
For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.