Pediatric Annals

A Pediatrician's View

Milton I Levine, MD

Abstract

Having appeared as an expert witness for pediatricians in a number of malpractice suits, I feel I must express my resentment over such trials by jury. Most members of the juries have had no medical backgrounds, are emotional and impressionable, and have been deeply swayed by the sight of a crippled child, a blind child, or a retarded child - not to mention the passionate appeal of an experienced malpractice lawyer.

I recall the case of a six-yearold girl with cerebral palsy who was brought before the jury. She had been a premature infant who had developed jaundice several days after birth. The bilirubin reached 16 and then subsided. (This was before the use of phototherapy in the United States.) The child later developed signs of cerebral palsy. And then, suddenly, six years later, the pediatrician was being sued.

In cases like this the lawyer for the child brings a medical textbook to the courtroom and reads from it to the jury. He reads that nerve damage may result from jaundice and then reads on, noting that 16 is a top margin of safety but that prematures may be more sensitive. He lays the books on a table and walks over to the jury. He speaks slowly and very deliberately - "This poor child would have been a lovely, active youngster instead of being forced to live her life disfigured and grimacing." The jury sits, listens closely, and feels deeply for the little girl. They find the doctor guilty.

We all remember a verdict a few years ago against a pediatrician who in 1951 treated a premature infant with high oxygen content in the incubator - the advised therapy at that time. The child developed retrolental fibroplasia and blindness. In spite of the fact that it was shown that high oxygen was advised in all textbooks and by all premature centers in 1951, the jury awarded the child over a million dollars.

Just a few weeks ago a jury awarded another large sum to an adolescent girl who developed carcinoma of the vagina because her mother was given diethylstilbestrol (DES) during pregnancy to prevent a miscarriage - an advised procedure at the time of her mother's pregnancy.

A few years ago I testified for a pediatrician who was being sued by the family of a seven-year-old girl. The girl had been a very bright child, but then, at the age of six, had all at once become severely retarded. What was the story?

The child at five and one-half years developed a severe cough that hung on in spite of treatment by various cough medicines and antibiotics. Finally, the pediatrician referred her to a roentgenologist, who in turn referred her for bronchoscopy and bronchogram. In the course of the bronchogram the child suddenly became very cyanotic, stopped breathing, and had a convulsive seizure. Once respiration had returned she was taken to the recovery room, where she had two more seizures. After that she was badly retarded.

The pediatricians, roentgenologist, bronchoscopist, anesthesiologist, and hospital were sued. 1 was called as a witness for the pediatrician - whom, by the way, I had never known. But why was he being sued? He did what any well-trained pediatrician would have done. He had even cultured the child's sputum. But, as the attorney for the child pointed out, it was the pediatrician who started the course of events.

After I testified, I waited around, anxious to hear on what basis the pediatrician was being sued.

The plaintiffs lawyer was presenting his case to the jury. He started off by reading from the pediatrician's notes.…

Having appeared as an expert witness for pediatricians in a number of malpractice suits, I feel I must express my resentment over such trials by jury. Most members of the juries have had no medical backgrounds, are emotional and impressionable, and have been deeply swayed by the sight of a crippled child, a blind child, or a retarded child - not to mention the passionate appeal of an experienced malpractice lawyer.

I recall the case of a six-yearold girl with cerebral palsy who was brought before the jury. She had been a premature infant who had developed jaundice several days after birth. The bilirubin reached 16 and then subsided. (This was before the use of phototherapy in the United States.) The child later developed signs of cerebral palsy. And then, suddenly, six years later, the pediatrician was being sued.

In cases like this the lawyer for the child brings a medical textbook to the courtroom and reads from it to the jury. He reads that nerve damage may result from jaundice and then reads on, noting that 16 is a top margin of safety but that prematures may be more sensitive. He lays the books on a table and walks over to the jury. He speaks slowly and very deliberately - "This poor child would have been a lovely, active youngster instead of being forced to live her life disfigured and grimacing." The jury sits, listens closely, and feels deeply for the little girl. They find the doctor guilty.

We all remember a verdict a few years ago against a pediatrician who in 1951 treated a premature infant with high oxygen content in the incubator - the advised therapy at that time. The child developed retrolental fibroplasia and blindness. In spite of the fact that it was shown that high oxygen was advised in all textbooks and by all premature centers in 1951, the jury awarded the child over a million dollars.

Just a few weeks ago a jury awarded another large sum to an adolescent girl who developed carcinoma of the vagina because her mother was given diethylstilbestrol (DES) during pregnancy to prevent a miscarriage - an advised procedure at the time of her mother's pregnancy.

A few years ago I testified for a pediatrician who was being sued by the family of a seven-year-old girl. The girl had been a very bright child, but then, at the age of six, had all at once become severely retarded. What was the story?

The child at five and one-half years developed a severe cough that hung on in spite of treatment by various cough medicines and antibiotics. Finally, the pediatrician referred her to a roentgenologist, who in turn referred her for bronchoscopy and bronchogram. In the course of the bronchogram the child suddenly became very cyanotic, stopped breathing, and had a convulsive seizure. Once respiration had returned she was taken to the recovery room, where she had two more seizures. After that she was badly retarded.

The pediatricians, roentgenologist, bronchoscopist, anesthesiologist, and hospital were sued. 1 was called as a witness for the pediatrician - whom, by the way, I had never known. But why was he being sued? He did what any well-trained pediatrician would have done. He had even cultured the child's sputum. But, as the attorney for the child pointed out, it was the pediatrician who started the course of events.

After I testified, I waited around, anxious to hear on what basis the pediatrician was being sued.

The plaintiffs lawyer was presenting his case to the jury. He started off by reading from the pediatrician's notes. He read the medications that had been used, including the antibiotics, and the sputum report that showed the organism to be Hemophilus influenzae.

"Now just listen to this," the attorney said to the jury, hesitating for effect and holding the extended forefinger of his right hand high. "This doctor did culture a specimen of the child's sputum and found the bacteria to be Hemophilus influenzae. So what did he do?"

He hesitated again while the jury listened intently. "What did he do?" he repeated. He held up the pediatrician's notes, and turning to a marked page, he stated: "He placed this little girl first on penicillin and then on Achromycin."

Then he reached over and brought from a table a bluecovered book on pediatric therapy. Slowly he turned to a page and, raising his voice, read: "The recognized treatment for Hemophilus influenzae infection is tetracycline."

And then he added: "Ladies and gentlemen of the jury, do you realize that if this physician had given tetracycline instead of penicillin and Achromycin, this child might very well have recovered quickly and would not have had to undergo the subsequent studies that led to this tragedy?"

By court rules I could not speak again. The pediatrician's attorney turned to me. "How could he have made that mistake?'" he asked. I educated him and, disgusted, left the courtroom to make a train back to New York.

The point I am making is that over and over again malpractice lawyers play on the emotions of a jury. It seems to me that an effort should be made by the American Medical Association and by the American Academy of Pediatrics to have medical malpractice suits removed from the "trial by jury" category and turned over to impartial, objective judges, preferably judges who have had some forensic background.

I myself have never been sued, but I have seen many cases where sincere and capable physicians were sued because they did what they should have done at the time of treatment.

So much for malpractice suits, a matter brought to mind by the subject of cerebral palsy - discussed in this issue.

The guest editor of this issue is Dr. Lawrence T. Taft, Professor and Chairman of the Department of Pediatrics of the Rutgers Medical School of the College of Medicine and Dentistry of New Jersey. Dr. Taft is very well known in the field of cerebral palsy. He has written articles on the early recognition of the condition as well as on neonatal and infant reflexology. Dr. Taft has chosen to open this symposium with an article on primary physician care of children with cerebral palsy. Its author is Dr. Leon Sternfeld, a pediatrician of tremendous experience, including experience in the field of public health. At present he is the Medical Director of the Research and Educational Foundation of the United Cerebral Palsy Association.

Dr. Sternfeld in his article emphasizes the advantages of home care in comparison with institutionalization and describes how much a normal home environment means to the handicapped child. He also specifies the important role of the primary pediatrician in organizing the total care of the child, in coordinating the major community resources to provide services to the child and his parents. An excellent and up-to-date bibliography is included.

The second article is on the medical examination of children with cerebral palsy and has been contributed by Dr. Kenneth S. Holt, the director of the Wolfson Centre at the University of London's Institute of Child Health in Great Britain. This article covers diagnosis, therapy, and prognosis and is a well-rounded contribution that takes into consideration not only the physical aspects of the child with cerebral palsy but his emotional problems as well. The developmental delay of these children, as Dr. Holt observes, is due to more than the cerebral pathology. The parents' uncertainty and apprehensiveness, as well as the child's own frustrating experiences, combine to have a serious effect on his emotional and physical development. A warning is given in this article against hasty and optimistic prognoses when the diagnosis of cerebral palsy is first made. The need for careful routine examinations is emphasized.

Dr. Holt reviews the reflex examination, and in addition provides an excellent mnemonic system (his own invention) for remembering all avenues of inquiry the pediatrician should pursue in his talks with parents in order to obtain a complete picture of the disabled child. He notes that most deformities are not part of the basic disorder but, rather, secondary complications that can and should be prevented.

The third contribution to this symposium describes the important primitive reflexes - the most important markers in the diagnosis and prognosis of cerebral palsy. Its author, Dr. Arnold J. Capute, is the deputy medical director of the John F. Kennedy Institute for Handicapped Children in Baltimore. Although there are a great many primitive reflexes that have been clearly defined, Dr. Capute has limited his discussion to those reflexes that he feels should be of the greatest help to pediatricians in their early examination and follow-up studies of children with cerebral palsy. This is a most important paper for all physicians who have the interest to follow their patients carefully and intelligently. Since most practicing pediatricians see very few children with cerebral palsy, it is evident that this article should be kept and filed for reference.

Next is a paper on the prognosis in cerebral palsy by Dr. Gabriella E. Molnar, director of the Pediatric Rehabilitation Service at Albert Einstein College of Medicine in New York City. This is a report based on the study of 359 children with cerebral palsy. The author reviews the correlation between the type of cerebral palsy and later ambulation and the relation between reflex development and later ambulation in affected children. Also included are certain prognostic indications of intellectual potential. In this regard, Dr. Molnar emphasizes that the usual developmental-screening tests must be used with caution in attempting to predict intellectual impairment when there is a physical handicap. This is a most valuable and comprehensive paper and well worth reading by all pediatricians.

The fifth article deals with the orthopedic approach in correcting musculoskeletal structural changes caused by cerebral palsy. It is contributed by Dr. Eugene E. Bleck, Professor of Clinical Surgery (Orthopaedic) at the Stanford University School of Medicine. It should also be noted that Dr. Bleck is the author of the recent book, Orthopaedic Management of Cerebral Palsy, published by Saunders. At the onset of the article he describes the structural changes due to muscle and joint contractures and what can be done to prevent some of these or minimize the deformities. Then he discusses the timing of orthopedic surgery either to prevent deformity or aid in function and appearance. This is an excellent guide for the pediatrician in discussing with parents possible surgery for the child with cerebral palsy.

The final article treats of the most difficult problem in the potential therapy for cerebral palsy, the neurosurgical approach. It has been written by Dr. Richard D. Penn, Associate Professor in the Department of Neurological Surgery at Rush Medical College in Chicago. Dr. Penn reports on the attempts that have been made to reduce spasticity by providing chronic cerebellar stimulation through an electrical implant. More than 1,000 such implants have now been made, and some beneficial effects have been noted through careful studies of patients' motor control, reflexes, speech, and spasticity. Dr. Penn feels that further studies are necessary before complete evaluation of this procedure will be possible.

10.3928/0090-4481-19791001-03

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