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Recos - Failure to diagnose bacterial meningitis

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					                                 CASE IN A SNAPSHOT



TYPE OF CASE:

Medical Malpractice/Failure to diagnose bacterial meningitis
Recommendations (con’t)


KEY ISSUES
Child Malpractice
Meningitis
developmental delay
bacterial meningitis
emergency room
temperature of 101
ambulance service
Medicaid
temperature
pulse
respiration
bilateral otitis media
IV fluis
rocephin
latinex granules
status post meningitis
pre-natal care
diabetes
hyperbilirubinemia
ambulance
discharge instructions
sput


MAIN POINTS/CASE FACTS

        The plaintiff is the mother of a then 2 month old child who developed severe
developmental delay secondary to bacterial meningitis which was undiagnosed by the defendant,
an emergency room doctor at the Harriman City Hospital. The plaintiff is seeking damages for



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Recommendations (con’t)

the child’s loss of future earnings and for the cost of providing 24 hour/day custodial care for the
child.


         On 12/31/91 Tina Arp took Patricia Arp to see their family doctor, Dr. Roberts. Roberts
diagnosed a common cold and prescribed Ceclor antibiotic as a treatment. On 1/2/92 at
approximately 9:00pm Tina Arp phoned Dr. Roberts and told him Patricia’s symptoms were no
better, she had a temperature of 101°+ and had been screaming a high-pitched scream. Roberts
told her to take Patricia immediately to the East Tennessee Children’s Hospital. At about
midnight Tina Arp called the Ambulance Service of Roane County. A unit arrived and,
according to Arp, the driver told her he could take her to either the Rockwood or Harriman City
hospitals but the trip to ETCH would not be covered by Medicaid. (The ambulance company
claims they offered HCH or ETCH and Arp chose HCH.)
         At 00:58am in the HCH ER, Patricia was examined by the defendant, Dr. Winterer who
noted her temperature as 103.4°F, pulse 140, and respiration 46. X-rays taken were within
normal limits. Winterer noticed redness in Patricia’s ears and diagnosed bilateral otitis media, an
earache in both ears. He prescribed Tylenol elixir and advised Tina to continue the Ceclor
prescribed by Dr. Roberts. Arp was released at 01:30am. Tina Arp recalls that Winterer told her
Patricia would be given a blood test but none was administered. She said she was discharged by
a nurse who asked her to sign release instructions and gave her a copy. The whereabouts of her
copy is now unknown.
         During the next four days Tina treated Patricia according to Dr. Winterer’s instructions
and although her fever gradually subsided, the baby did not appear to get any better. On 1/7/93
Tina Arp again called the ambulance service and was this time transported to ETCH without
question or incident. Patricia was admitted in serious condition and diagnosed as having
meningitis, pneumonia, and enteritis. She was treated with IV fluids, rocephin 250mg IV q12h
and latinex granules.
         On 6/30/92 Dr. Miller of ETCH wrote a letter in which he stated that Patricia, 8 months
old, appeared to have problems with developmental delay and with tremor. His impression was:
Status post meningitis with residual severe developmental delay.



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Recommendations (con’t)

CRITICAL ISSUES
1.    Did Patricia Arp have treatable bacterial meningitis when she was examined at HCH by
      Dr. Winterer.
2.    If Patricia Arp had meningitis at HCH, could it have been diagnosed through the use of a
      septic workup.
3.    Was a septic workup required by the standard of care for a febrile child of less than 3
      months age.
4.    Did the undiagnosed bacterial meningitis cause or contribute to Patricia’s current severe
      developmental delay.
5.    Is Patricia’s severe developmental delay due to poor pre-natal care, the mother’s diabetes,
      and/or her hyperbilirubinemia at birth.




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Recommendations (con’t)



PROBLEM AREAS
1.    Tina Arp is not a credible witness. Her testimony before mock jurors was contrived,
      detached and lacked sincerity. One mock juror remarked that she was obviously an
      “instructed witness.” She was conveniently unable or unwilling to recall details about her
      own activities relative to the visit to the ER at HCH. Specifically, Arp claimed before the
      mock jurors that she had been giving Patricia Tylenol in order to reduce the baby’s fever.
      Records of the ambulance service and the HCH ER indicate however, they were told she
      had not given Patricia Tylenol even though she had been instructed to do so by Dr.
      Roberts.
2.    According to plaintiff’s attorney Dr. Roberts said in deposition he spoke to Tina at about
      9:00pm on 1/2/92 and instructed her to take Patricia to ETCH immediately. If his
      recollection of the time is correct there is an unexplained three hour delay between that
      call and the time Tina Arp called for an ambulance.
3.    The defense will claim that Patricia’s damage is probably due to kernicterus as a result of
      her hyperbilirubinemia at birth.
4.    According to Dr. Winterer, he would have completed a blood test if Tina had not left the
      ER early. He says evidence she was not discharged is her failure to sign the lower right
      corner of Patricia’s chart indicating she had received discharge instructions.
5.    Many jurors thought Tina Arp should have made a full disclosure of Patricia’s medical
      history to the ER doctor.
6.    Tina didn’t follow Dr. Roberts’ instruction to “go to ETCH, now!”
7.    Tina Arp didn’t ask questions of Dr. Winterer or demand additional care of him. This
      failure disturbed many jurors who are also parents.
8.    Jurors felt Tina shouldn't have waited four days from the first emergency room visit at
      HCH to the second emergency room visit at ETCH.




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Recommendations (con’t)


SOLUTIONS

1.    Witness preparation for Tina Arp is necessary and should focus on her credibility
      problems while making her a more sympathetic witness for jurors. Holes in her
      testimony need to be closed. She cannot be seen to remember only the facts that support
      her case while lacking any memories of her own shortcomings or errors. Her memory
      lapses cause jurors to suspect she is concealing material facts from them making them
      unlikely to credit any statements she makes. It’s possible that Arp feels she should claim
      to have done everything she was told (such as giving Tylenol) in order to appear that she
      was a good and conscientious mother. It will not be easy however, to explain how it’s
      possible that everyone else is involved in a conspiracy to discredit her and that her
      version is the truth. If she had a legitimate reason for not following Dr. Roberts
      instructions to give Tylenol such as “I was out of Tylenol at home and had no way to get
      more.”, she should say so and hope her predicament will be understood.
2.    You need to tie down Dr. Roberts on the time of his return telephone call to Tina Arp. If
      it can be shown that he made the call not at 9:00pm but much later, a serious stumbling
      block for jurors will be overcome. Since Arp said she originally spoke to Roberts’
      answering service and was then called back by him there may be a record of the call with
      the service. If so it should be obtained. It is important for jurors to know that Tina Arp
      took her daughter’s health seriously, placed her full faith in her doctor, and did not
      unnecessarily delay her daughter’s treatment.
      There is reason to question Roberts’ recollection of the timing of the telephone call. Dr.
      Mark T. Jennings, a defense expert, analyzed the medical records of Patricia Nicole Arp.
      The records of each doctor, hospital, and ambulance service were transcribed beginning
      with birth and continuing through 9/13/95. In each case where it appears a time was part
      of the record, it was made part of the transcription. The transcription of Dr. Roberts’
      records include the following:


      “1/3/92 1/2/92 S/P T 101.2°, nt brthing (breathing) well - grm (?green) sput. P. ETCH-
      ER now.”

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Recommendations (con’t)



      There is no indication of the time that Dr. Roberts “S/P” spoke [to] patient other than
      Tina’s own estimate. It’s possible therefore that his estimate of the time was wrong and
      that is why Tina Arp is unable to account for her actions other than to say “I probably
      tried the lukewarm baths and the Tylenol again.” Attempt to tie her down on the time and
      if she cannot recall when she called, that should be her answer.
3.    Tina Arp needs to recall what she was told when she was discharged from the hospital
      after Patricia’s birth. What was she told to expect, if anything, as a result of Patricia’s
      jaundice. If she can specifically recall being told that the jaundice had been successfully
      treated and that Patricia would suffer no future consequences it will be important to bring
      that out.
4.    Tina claims she was told she could leave the ER by a nurse who said Dr. Winterer had
      diagnosed a common cold and that Patricia should continue the Ceclor and Tylenol and
      bring her back if she wasn’t any better. She claims that she signed an instruction sheet
      and was given a copy although she did not know if she could locate the copy. If Tina is
      able to locate her copy of the discharge instructions an important defense argument will
      be eliminated.
5.    Point out that Tina disclosed everything she felt was relevant (primarily her previous visit
      with Dr. Roberts) and answered all the questions she was asked. It is not the
      responsibility of a person with an eleventh grade education to second-guess a medical
      doctor.
6.    Tina Arp should place emphasis on the ambulance drivers assessment that Patricia’s
      illness did not appear life threatening. She very likely believed the ambulance driver was
      trained to cope with emergency medical situations and was a professional on whose
      opinion she could rely. The driver’s assessment coupled with the fact that he told her
      Medicaid would not cover a trip to ETCH tend to make her actions more reasonable
      under the circumstances.
7.    Tina needs to impress upon the jury that she offered the defendant all the information
      about Patricia’s condition that she could however she did not feel confident to question
      his actions or diagnosis given her limited education. In fact, she may have been made to

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Recommendations (con’t)

      feel a little foolish about rushing her child to the emergency room for the second
      diagnosis in as many days of a “common cold.”
8.    Tina had already cried “wolf” twice over Patricia’s condition so when she saw that
      Patricia’s temperature was gradually dropping she took that as a positive sign. To her
      credit she did observe the child closely enough to note that although her fever was
      breaking, her overall condition was not improving. Place positive emphasis on the fact
      that she sought out a new opinion each time to satisfy those who will place weight on the
      value of a second opinion.




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Recommendations (con’t)


DEFENSES
There are likely three primary defenses that will be offered to Dr. Winterer’s failure to diagnose
Patricia’s bacterial meningitis. First, will be the offering that the defendant followed the
standard of care required of him during the visit to the HCH ER on 1/3/92. Counter this defense
with the chart showing the standard of care for a febrile child less than three months old that
mandates a septic workup. Second, will be the claim that had a septic workup been done the
results of the CBC would have been confused by the fact that Patricia had been on Ceclor for two
days. Counter this defense with the argument that ETCH performed a full septic workup and was
able to diagnose bacterial meningitis despite the fact that Patricia had been on Ceclor for six or
seven days by that time. Third, is that Patricia’s brain damage was the likely result of
hyperbilirubinemia at birth. Point out that Patricia was given a clean bill of health upon her
discharge after birth and that the defenses’ own expert, Dr. Jennings, states that “for healthy term
infants, there is no good correlation between bilirubin level and neurologic outcome” (Jennings
Jan 1996, REVIEW AND ANALYSIS OF THE MEDICAL RECORDS OF PATRICIA N. ARP,
Page 12, para 4). Use a plaintiff expert to introduce evidence that one of the possible outcomes
of bacterial meningitis is mental retardation (see chart “What caused Patricia’s Injury?).


STRATEGIES
To the extent it is possible, limit the role and testimony of Tina Arp. Even after preparation she
will likely be the weak link in your presentation. Through the use of experts, charts and other
documentary evidence define the technical terms and jargon to be used, and show the nexus
between bacterial meningitis and mental retardation. Jurors repeatedly stressed their desire and
need to see standards, definitions, and causes in “black and white.”



PURPOSE OF THEMES
To demonstrate that the defendant performed only the minimum that was required of him. That
he was content to let someone else shoulder the burden of identifying Patricia’s problem.



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Recommendations (con’t)


THEMES
Fast food medicine.
Responsible but not responsive.
Stopped at obvious.
Red flags.
Indifference.
Failure.
Obligation.
Shortcut.



PIVOTAL POINT
Their are two pivotal points in this case. One is the removal of blame from the mother, Tina Arp.
The other is the removal of a birth defect as the possible/probable cause of Patricia Arp’s brain
damaged developmental delay. Jurors inevitably apply the first and the most blame to the
parent(s) in situations similar to this. In fact, the first reaction of each research jury that heard
this case was to blame the mother and assign negligence to her. That coupled with a tendency to
find in favor of physicians makes your opening statement critical. Jump out in front of the
problem in your opening remarks. Make the jury’s first impression of Tina Arp a favorable one
rather than trying to create a favorable impression during the trial. By applying the suggestions
listed in DEFENSES above you should be able to effectively deal with the second pivotal point
regarding birth defect.



PURPOSE OF ANALOGY
Analogies are used to demonstrate the lack of concern and responsiveness shown by the
emergency room physician in a way that jurors can relate to their own experience.




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Recommendations (con’t)


ANALOGIES - ANALOG MAPPING
If a realtor or car salesman sells you a house or a car fraudulently it’s not your fault when you
have problems.
This is like the movie “Catch 22” where the kid on the plane complained he was cold. They kept
trying to get him warm and never realized he’d been hit and his guts were hanging out under all
the blankets.
This is like putting a Band-Aid on an amputated limb.



PURPOSE OF METAPHORS
To demonstrate the doctor/defendant was the responsible party because he didn’t treat the patient
properly or follow a professional standard of care.



METAPHORS
The doctor had tunnel vision.
Band-Aid
Better safe than sorry
Pass the buck.
Cry for help.




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