Medical Malpractice Insights: Delayed Diagnosis of Viral Encephalitis

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-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, Med Mal Insights

When 33 hours makes little difference

Facts: A mid-20’s female awakens with symptoms of stomach flu including abdominal pain, nausea, vomiting, and a subjective fever. That evening her mother notes her “speaking gibberish” and takes her to the ED. The medical record of that visit addresses only the abdominal complaints. The neuro ROS simply says “Alert. Denies focal weakness or sensory changes.” Neuro/psych exam is recorded as “Alert. No focal deficits. Normal speech. Affect normal. Judgment normal. Mood normal.” Appendicitis is ruled out during her workup, and she is discharged with a comment that says “I have stressed that if she is getting worse, she should come back and be rechecked.” Less than 33 hours later she has a seizure. EMS is called, and she is returned to the same ED in status epilepticus. She is treated immediately and appropriately, diagnosed rapidly as having encephalitis, and admitted to the ICU. CSF suggests a viral process, and fluid is sent for further detailed analysis. Neuro, ID, and critical care consultants are heavily involved. Antibiotics, steroids, and an antiviral are given. The seizures persist and are hard to control. Because of the complexity of her management, she is transferred to a tertiary hospital 3 days later for further care. Every bacterial, fungal, and viral culture is negative. After about a month, she is discharged to home rehab. A year later she continues to be mostly dependent due to ongoing psychomotor and speech difficulty. The family consults an attorney.

Plaintiff: My mother brought me in the first time because I was “speaking gibberish.” She was in the room with me the whole time and no one asked her about anything. Plus, she’s a nurse and was really upset that no one seemed to care what SHE thought or why she brought me to the ER.

Defense: Her evaluation on the first visit was appropriate to her presentation. She returned as advised when she did not get better. Even if the speech problem about which her mother was concerned had been recognized, earlier admission would have made no predictable difference. If her mother had concerns, she should have spoken up. Her care on the second presentation was superb. There is consensus on the value of anti-virals only for HSV and varicella/zoster, which she did not have. Viral encephalitis is a very serious disease with a 2%-50% mortality and a long recovery period for survivors. We treated her appropriately.

Result: The plaintiff’s expert felt that the defense position was strong and communicated to the attorney and his client that a lawsuit would have little or no merit. The parties agreed, and no lawsuit was filed.

Takeaway: This case is about communication and documentation. Just like on the ABEM Board exam, we should question all available historians: family members, friends, bystanders, EMS personnel, etc. Any one may hold the key to the diagnosis. As a nurse, the mother felt badly that she had failed to advocate better for her daughter. Eliciting the mother’s information might well have led to further evaluation and an earlier admission, but no guarantee of a better outcome. It would most likely have quashed the need to seek legal advice. Also note that while documentation is excellent for the first visit, it reeks of “checkbox charting” or “clicktation.” It’s easy to do but hard to verify if it really represents the truth. In any lawsuit there must be negligence, damages, and causation (a connection between the negligence and the damages.) In this case there was no evidence in the medical record of negligence, and although the outcome was not ideal, damages cannot be connected to any delay in care.


“Success does not consist in never making mistakes but in never making the same one a second time.”

George Bernard Shaw


References/Further Reading:

Viral Encephalitis, Gondim F et al., Medscape eMedicine

Viral encephalitis in adults, UTDOL, Stephen J Gluckman MD


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