Four Days Too Late - Medical Malpractice

Main Category: Litigation / Medical Malpractice
Article Date: 11 Dec 2003 - 0:00 PDT


From:
http://www.thedoctors.com/publications/docadv/2003q3.asp

Delays in diagnosis of medical conditions such as cancer may well result in malpractice claims. Usually these delays are a matter of months or even years. Some conditions, however, require more urgent interventions, and delays of even several days can fall below the standard of care and have disastrous results. The following case illustrates one such scenario.

Early one morning, a healthy term baby was born with Apgars of 8 and 9. His blood type was B positive and his mother's was O negative. The pediatrician, our insured, was paged at 9 P.M. that evening because the mother wished to be discharged.

On examining the newborn, the pediatrician noted mild jaundice. He spoke to the parents about the need to expose the baby to sunlight and to continue observing for clinical jaundice. The mother reminded the pediatrician that her last child had also been born with mild jaundice and she was familiar with it. He said he would phone in one to two days to check on the infant's status.

As promised, the insured phoned the mother two days later. He was told the baby was feeding well and the yellowish tone was seen only on the baby's face. The pediatrician advised the mother to continue placing the baby in sunlight.

He also inquired whether a visiting nurse had arrived at the house as scheduled, and was told that no such visit had yet occurred.

At four days of age, the parents phoned the insured, concerned that the baby was feeding poorly and arching his back in an unusual manner. On examining the infant in his office, the pediatrician noted obvious jaundice and prominent arching of the neck and back.

He transferred the baby immediately to the nearest medical center. On arrival at the hospital, the bilirubin level was measured at 40. The infant was treated with exchange transfusion and phytotherapy-with IV fluids and albumen to improve bilirubin binding.

Was the Delay in Treating the Hyperbilirubinemia Significant?

At the time of his discharge one week later, the infant had been placed on phenobarbital to control seizure activity. A neurologist noticed abnormal gaze, decreased motor activity, and poor head control.

An electroencephalogram was abnormal, and an auditory brain stem response test demonstrated possible hearing loss.

The child is now eight years old. He has cerebral palsy, seizures, spastic quadriplegia, microcephaly, mental retardation, and stridor. He cannot sit or walk and has no control over head or extremity movements. An impaired swallowing mechanism necessitates frequent suctioning and gastric-tube feedings.

A pediatric expert asked to review this case concluded that the child's brain damage was completely preventable. He felt the bilirubin level should have been checked prior to releasing him from the hospital and followed closely thereafter.

As soon as it was noted to be elevated, therapy should have been immediately started. It was felt that he had suffered bilirubin encephalopathy and clinical kernicterus as a result of delayed care.

Could the Insured Defend His Own Care?

The pediatrician argued that when he had called the mother on day two, she reported that there was some yellow on the baby's face. He stated that facial jaundice alone usually correlates with a bilirubin level of about 10.

Not until the jaundice has spread to the torso, legs, and feet are values as high as 15-20 routinely seen. The insured admitted he had not heard of a bilirubin as high as 40 resulting from blood type incompatibility.

The insured felt he had not breached the standard of care. He had warned the parents to check for jaundice because of ABO incompatibility and had both phoned the house at two days and ordered a visiting nurse.

Once the hyperbilirubinemia was diagnosed, treatment was initiated almost immediately. He was insistent that there had been only minimal jaundice when the baby first left the hospital. He did concede that at the time the baby was discharged at 9 P.M., there was no sunlight, which is the best light in which to see jaundice. He had made it clear, however, that the parents should continue to watch for jaundice.

When he spoke to them by phone on day two, he felt reassured the jaundice was still minimal and felt they understood the necessity of returning to the hospital if it spread beyond the face.

The pediatrician did not feel it necessary to bring the baby in on day two for a blood level because the mother described him as doing so well. He stated that even if he had seen the baby at that time, and if he looked well, was feeding well, and did, in fact, have jaundice limited to the face, he would have done nothing differently and would have sent the baby home with the same advisories.

Should This Case Be Tried?

Both parents recalled being told in the hospital that the baby had split cells on hematological evaluation. When they asked a nurse what this meant, they were told it simply meant the baby was mildly jaundiced and that there was nothing for them to worry about.

Experts felt that discharging a baby like this home without serial bilirubin determinations violated established norms. They stated that the primary way to diagnose hyperbilirubinemia is not visually, but rather by blood sample or transcutaneous measurement.

A number of experts agreed that the insured had no right to rely on the parents to monitor jaundice clinically. The fact that they had a prior child with mild hyperbilirubinemia did not relieve the insured of his responsibility to re-educate them and monitor this child closely himself.

He was criticized for not asking to see the baby personally when he was told there was jaundice visible on the face. The means of estimating bilirubin levels by the spread of jaundice from the face was referred to as simply a clinical aid that should never substitute for definitive testing. The nursing visit never occurred.

Almost all experts opined that the standard of care for any baby with clinical jaundice during the first day of life is to obtain a baseline bilirubin value and follow serum levels or transcutaneous levels. This would be particularly important in the face of ABO incompatibility and evidence of hemolysis on the CBC.

With concerns about the standard of care and the substantial jury sympathy for a severely injured child, it was felt wisest to settle this case rather than take it to trial. With the consent of the insured, this claim was settled for a substantial sum of money with an additional contribution made by the hospital.

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