Medical Malpractice Insights: Caution with high-risk kids, and document!

Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFL is 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, Medical Malpractice Insights

Missing influenza costs $8 million – well, not quite. 

Use caution with high-risk kids. And document! Document! Document!


Facts: An 8-year-old child presents to her pediatrician with fever, sore throat coughing, and sneezing for 2 days. She has a history of asthma, pulmonary dysplasia, pulmonary hypertension, and premature birth at 27 weeks’ gestation. She is diagnosed with sinusitis and treated with an antibiotic, inhaler, and decongestant. She worsens. Her mother calls her doctor who reassures her. She then goes to the hospital, where a chest x-ray is normal and a test for influenza A is positive. No antiviral is prescribed. She sees 2 different doctors in the next 4 days, and on day 7 of her illness is sent to the ED by her pediatrician with respiratory rate of 60 and an O2 sat of 67%. She is admitted and given oseltamivir but dies on hospital day 3. Her autopsy shows respiratory failure due to H1N1 influenza. A state review panel finds no physician wrongdoing (as they do in 93% of cases reviewed), but a lawsuit is filed.

Plaintiff: My daughter had a fever, sore throat, coughing, and sneezing, all symptoms of flu. She was high risk. H1N1 influenza was rampant and well-publicized at the time. You should have checked her for influenza immediately. Early treatment for a high-risk patient like her is recommended by the CDC and would have saved her life. Oh, and her chart showed she was allergic to the antibiotic you prescribed.

Defense: My diagnosis of sinusitis was reasonable. She remained active. Tamiflu isn’t helpful after 48 hours of symptoms. Other doctors agreed with me, as did a state review panel.

Result: $8 million plaintiff verdict after 6 day trial, reduced to the $500,000 maximum allowed under Louisiana law. However, the defense was assessed all of the plaintiff’s trial preparation costs.


  1. Children with risk factors and a complex medical history should never be taken lightly.
  2. Document your MDM. This child had flu-like symptoms during flu season, so including influenza in one’s differential and explaining why oseltamivir is inappropriate could have prevented this lawsuit.
  3. If a simple diagnosis is determined, your MDM should be clear why a more serious diagnosis was eliminated.
  4. Do not rely on EHR macros to document your MDM. It should read like it was written by a caring human being.
  5. Thoughtful MDM showing care and concern will nearly always overcome emotional plaintiff appeals to a sympathetic jury.
  6. Dead children make excellent plaintiffs.
  7. Science doesn’t always prevail.
  8. Juries are fickle and unpredictable.


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