Physicians found negligent for not performing CT scan

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted April 12, 2004.

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The federal government estimates that defensive medicine costs $70 billion to $126 billion annually, but any effort to stem the tide of "just-in-case" blood tests, x-rays, CT scans or MRIs could be stymied by a recent $5 million jury award in Maryland.

A family sued their infant's pediatrician, an emergency department physician and an on-call pediatrician at the hospital for not ordering a CT scan. To the doctors, the 11-month-old boy appeared normal and in no need of the test.

But after the infant had more serious injuries resulting from an incident at his babysitter's home a couple of weeks later, the parents faulted the physicians for not ordering the CT scan they believe would have shown the boy was being abused.

While a plaintiff's attorney says the February Charles County verdict shouldn't send physicians running to order CT scans for every child that comes in with a head injury, many doctors say that's the exact effect the ruling could have.

The babysitter originally brought the baby, Jack, to his pediatrician's office around noon on Nov. 18, 1998. The infant's mother met the two there. The babysitter told the doctor that the infant hit his head on the floor.

The pediatrician didn't see any signs of injury -- no bleeding, no bruises. The boy appeared alert and neurologically normal. The infant didn't have a history that would lead the physician to suspect child abuse. The pediatrician sent the infant home with his mother, Robyn Sprague. He told her to keep an eye on the boy and call if there were any concerns.

When her husband John came home from work, he agreed with Robyn that the boy wasn't his usual energetic self. They phoned the pediatrician who saw Jack earlier in the day; he told them to take the infant to the emergency department.

The Spragues said they believed they were going to the hospital to get the CT scan because their pediatrician wanted it and because their infant was not behaving the way he normally did.

But, the three physicians told jurors there was no reason to order the scan because the infant showed no signs of trauma that would call for the test. According to the physicians' attorney, Jack's pediatrician said he would call ahead to let the emergency department know that the family would be arriving and that the infant may need a CT scan so the machine would be ready in the event it was needed. Jack's pediatrician could not order the CT scan; that would have to be done after the infant was seen by doctors in the ED, according to the physicians' attorney, A. Gwynn Bowie Jr.

The emergency physician examined Jack and then called the on-call pediatrician to examine the boy. Similar to the boy's pediatrician, neither of the doctors in the ED saw outward signs of injury, and neurologically the boy seemed healthy, Bowie said.

The emergency physician described the infant as playful, bright and engaging, and the pediatrician described him as alert and active, according to the physicians' attorney. An ED nurse also described Jack as playful and active.

The CT order that the emergency physician wrote after the infant arrived at the ED was canceled. The boy was discharged, and his parents were advised to follow up with their private pediatrician in a couple of days. When they followed up, the pediatrician found nothing wrong with the boy, Bowie said.

"The medical issue in this case was whether a CT scan was required in a normal child" Bowie said. "The physicians met the standard of care."

However, the plaintiffs maintained they were expecting a CT scan because the pediatrician called ahead, which led them to believe he wanted the scan. When the Spragues arrived at the ED around 10 p.m., the emergency physician examined Jack and wrote that the infant had postconcussion disorder, according to plaintiff attorney Robert J. Weltchek. A technician talked to the parents about nursing the boy to sleep so that he would not need to be sedated for the scan, Weltchek said. The light in the room was shut off, and the mother began nursing the infant. (There was no testimony during trial from anyone working at the hospital that this took place.)

The pediatrician on call came into the room, turned on the light and woke Jack to examine him, said Weltchek, who also said that from the parents' perspective, the pediatrician didn't spend enough time asking questions or evaluating their son.

The pediatrician found that Jack appeared normal and canceled the CT scan, Weltchek said.

"This was an egregious act of malpractice," Weltchek said. "It was black and white."

The jury agreed with the plaintiffs that the physicians were negligent in not performing the CT scan and awarded damages to the family.

The physicians, though, plan to appeal that finding. They say the situation they were presented with at the time gave them no reason to do the CT scan: A boy with no history of child abuse who reportedly fell and hit his head appeared to be normal.

The doctors believe the verdict is based on juror sympathy. They believe they would never have faced a malpractice lawsuit if the boy hadn't been severely injured weeks later.

Another call from the babysitter

On Dec. 4, 1998, the babysitter reached Robyn Sprague at work and told her Jack was in the middle of the floor and not responsive. The mother told the babysitter to call 911.

A helicopter took Jack to Washington, D.C., for emergency surgery. The neurosurgeon discovered a massive subdural hematoma caused that day. The injury left permanent disabilities.

The babysitter was charged with child abuse. She was found guilty, but on appeal, the court threw out the verdict because of the pending case against the doctors. Her new trial has yet to take place.

After noting that the surgeon who performed the operation Dec. 4 described a small subdural hematoma that was days to weeks old in addition to the larger one that left him disabled, the Spragues sued for malpractice.

In addition to telling jurors that physicians were negligent for not performing a CT scan on Nov. 18, they argued that if the earlier scan were done, it would have shown the small hematoma, which would have conflicted with the report that the infant fell and hit his head, Weltchek said. The finding would have indicated shaken-baby syndrome. That, the Spragues argued, would have led to a child-abuse investigation and Jack would not have been in the babysitter's care on Dec. 4.

But, the physicians said that's a lot of speculation.

Plaintiffs' experts testified that the CT scan would have picked up the smaller hematoma, but defense experts questioned whether the scan would have been able to see the injury. And then there's the question of whether the smaller injury even occurred on Nov. 18 or another day.

"The neurosurgeon said he believed the hematoma was older, but it doesn't mean it was there on Nov. 18," Bowie said.

What's a doctor to do?

Right now, doctors hope that an appellate court will overturn the jury verdict.

If not, they fear they'll need to conduct every conceivable test when an injured child comes into their office or the ED.

"You would observe the standard of care at your own peril," MedChi Executive Director T. Michael Preston said.

But Weltchek said this case should not lead physicians to practice defensive medicine. If they're going to draw any conclusions, he said they should practice good medicine and do a CT if they believe it's warranted.

"If anything, doctors should be outraged that the CT scan wasn't done," Weltchek said. "I would hope that they would see there is a reason behind this case being brought."

Tanya Albert amednews correspondent—

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