Medical Malpractice Insights: Bounceback Babies

Author: Chuck Pilcher, MD FACEP (Editor, Med Mal Insights) // Editors: Alex Koyfman, MD (@EMHighAK) and Brit Long, MD (@long_brit)

Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFLis to improve patient safety, educate physicians, and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here.

Chuck Pilcher, MD, FACEP

Editor, Med Mal Insights

Bounceback babies

On the 2nd ED visit in 24 hours, is it STILL “just a virus”?

Facts: An 11-month-old male is taken to the ED by his mother after several days of difficulty breathing, fussiness, and fever, confirmed in the ED. He is diagnosed by “Dr. A” with a URI and discharged with symptomatic treatment. His fever is higher the next day, and he is irritable, dehydrated, and lethargic. His concerned mother takes him back to the same ED where he is seen by attending physician “Dr. B.” A CXR is normal, and he is again sent home with a diagnosis of “bronchiolitis.”  He returns for a third time the next day, is seen by a resident (“Dr. C”) 1 hour after arrival and by the attending (“Dr. D”) 3 hours after arrival. The attending’s differential diagnosis includes fever, bronchiolitis, pneumonia, serious bacterial infection, and dehydration. IV fluids and lab work are ordered. An LP is deferred pending lab results and response to fluids. The patient is handed off to another attending (“Dr. E”) an hour later. Labs revealed leukocytosis and elevated CRP, and the child is no better. An LP is finally done – 6 hours after arrival and 2 days after first presentation. It confirms bacterial meningitis, but antibiotics are not administered until almost 8 hours after arrival. He is admitted and recovers but is left with delayed development and neuro-cognitive disabilities. A lawsuit is filed against attending physicians B, D, and E and the hospital (employer of resident physician Dr. C). Dr. A is not named.

Plaintiff: My son is now nearly 7-years-old, has permanent brain damage, will be illiterate, and is functioning like a 3-year-old. Dr. B should have done more testing because my son was getting worse, not better only 24 hours after the first visit. Dr. B should have done at least a CBC, blood culture, a UA, and LP on his second visit. Even on the 3rd visit, Dr. C, D, and E’s delays increased his disability. ACEP has standard practice guidelines for kids like mine.

Defense: Your son’s symptoms were consistent with bronchiolitis. He seemed to get better in the ED on each of the first 2 visits. Sending him home was reasonable.

Result: The trial lasted 4 weeks. The jury deliberated only 3 hours before rendering a $10.1 million jury verdict against attending Dr. B (40%) and the hospital (60%, on behalf of resident Dr. C). Attending physicians Dr. D and Dr. E were not included. The losing defendants appealed on 5 issues, all of which were denied, and the trial court verdict was sustained. 


  • Document a differential diagnosis on every visit.
  • Always ask yourself “What’s the worst thing that could be going on with this child?”
  • Follow that with “Am I certain this child doesn’t have that?”
  • Record the medical decision making (MDM) you use to reach your conclusions.
  • MDM can be based on clinical assessment; tests aren’t always needed.
  • Give good discharge instructions to the parents – especially if the child is already a “bounceback.”

Source: Justia


  1. Fever – Infants and Children Younger than 2 Years. ACEP 2016 Clinical Policy.—infants-and-children-younger-than-2-years/
  2. Hey, Do You Remember That Patient…? Bouncebacks in the Emergency Department. Gadhok K., Fairbrother, H. emDocs, Nov 25 2015.


Be big enough to admit your mistakes, smart enough to profit from them, and strong enough to correct them.

John C. Maxwell

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