Pneumonia in the News, in the Law, But Hopefully Not in Your Lungs

Whether your travels have taken you to the Research Triangle of North Carolina or Round Rock, Texas, or you stayed at home reading the business news or listening to the county music station you have probably heard a lot about pneumonia lately.

The CDC’s Feature on pneumonia prevention states that, globally, pneumonia kills nearly one million children younger than five years of age each year, more than any other infectious disease. Each year in the United States, about one million people have to seek care in a hospital due to pneumonia, and about 50,000 people die from the disease.

Pneumonia is an infection of the lungs that can cause mild to severe illness in people of all ages. Common signs of pneumonia can include cough, fever, and trouble breathing. Pneumonia can be caused by viruses, bacteria, and fungi. In the United States, common causes of viral pneumonia are influenza and respiratory syncytial virus (RSV), and a common cause of bacterial pneumonia is Streptococcus pneumoniae (pneumococcus). However, clinicians are not always able to determine the germ that causes a patient’s pneumonia.

Many pneumonia deaths—both globally and in the United States—can be prevented with vaccines and appropriate treatment (like antibiotics and antivirals). In the United States, there are vaccines that help prevent infection by some of the bacteria and viruses that can cause pneumonia, such as that flu shot you’ve been putting off.

Malpractice claims for death from pneumonia often occur, as it did in Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex., April 24, 2015), rehearing denied (Jun 19, 2015). A month after his birth, a boy was examined by his doctor at a regular checkup. The boy had a fever of 100.2 degrees, was coughing and suffering from nasal congestion, and had been exposed to people suffering from pertussis (whooping cough) at home. He had been coughing to the point that he could not breathe and was exhibiting facial discoloration. The doctor did not order any tests at this appointment. Four days later, the boy’s parents brought the boy back to the doctor because his symptoms had worsened. The doctor physically examined the boy, but again did not perform or order any tests. Five days later, the boy’s parents took him to the hospital, where he was treated for acute pneumonia, wheezing, and tachycardia. He was transferred to another hospital where he died 40 days after his one-month checkup.

The boy’s parents sued the pediatrician. The parents’ expert opined that the pediatrician breached the standard of care by failing to have various laboratory diagnostic tests performed on the child and failing to administer antibiotics prophylactically while the tests were performed. The Supreme Court of Texas held that the trial court did not abuse its discretion by denying the doctor and her employer’s motion to dismiss in light of conflicting statements in the parents’ medical expert’s report. The court reasoned that it was within the trial court’s discretion to determine that the medical expert’s opinions were linked to the underlying facts and explained why and how the doctor’s timely treatment of the boy with antibiotics would have prevented the boy’s death, and decide whether the report demonstrated a good faith effort to show that the parents’ claims had merit.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

See also Medical Law Perspectives, December 2015 Report: Pneumonia Complications, Hospitalizations, Deaths: Risks and Liabilities

For more details about Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex., April 24, 2015), rehearing denied (Jun 19, 2015), see the Scalpel Weekly News, May 4, 2015.

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The content of this blog is provided for informational purposes only, and does not constitute legal advice.
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