Exposure of the Pediatrician to Liability for Medical Malpractice

By Sean F.X. Dugan
Thursday, July 31, 2014

The volume of lawsuits against pediatricians appears to be relatively low. However, the exposure may be substantial because a large portion of lawsuits filed against pediatricians claim the injury includes brain damage. Based on a lifetime of pain, suffering, as well as enormous special damages for medical care and therapies, these suits often translate into a larger monetary exposure.

A majority of the lawsuits instituted against pediatricians arise out of four general areas: failure to timely diagnose brain tumors, meningitis, appendicitis and lead poisoning.

Brain Tumors

The incidence of central nervous system tumors in children is four to four and one half cases per 100,000 person-years. Since there is a high mortality rate and higher morbidity rate associated with these brain tumors, a pediatrician must be alert to find the signs and symptoms associated with the tumor obstructing drainage of the cerebrospinal fluid. This obstruction may cause increasing intracranial pressure or focal brain dysfunction. Since about 30 percent of the children afflicted with this primary central nervous system tumor die, the practitioner must take a careful history and perform a complete examination, followed by an MRI of the head, if this diagnosis is considered. Even with prompt diagnosis and appropriate treatment, half of the children who survive their primary brain tumor will be afflicted with lifelong problems, driving the monetary exposure to the pediatrician ever higher.


Meningitis may present in such a nonspecific clinical setting that the diagnosis is sometimes difficult to make promptly. These nonspecific clinical syndromes include children complaining of headache, nausea/vomiting, feeding disturbances and irritability — all of which are compatible with meningitis and many other diseases. Even today a significant mortality is associated with this disease, and 10 percent of the surviving children will have severe neurologic deficits. Almost half of meningitis survivors may have some neurobehavioral morbidity for the rest of their lives. These damages clearly drive up the monetary exposure to the pediatrician, making it necessary for the careful practitioner to be alert for the indications for performing a lumbar puncture in order to examine the cerebrospinal fluid of a child possibly afflicted with bacterial meningitis.

Lead Poisoning

Failure to timely diagnose lead poisoning is still a significant, but declining, area of exposure to the inner city-based pediatrician. Since we have done away with lead-containing solder to seal our food and beverage cans and with leaded gasoline, and we’ve discontinued the use of lead-based paint in children’s residences, the incidence of this condition has decreased enormously in America. However, it is estimated that hundreds of thousands of children in the United States are still afflicted with elevated blood lead levels which, when chronic, are associated with motor neuropathy and deficits in intellectual function. The alert pediatrician will be aware whether her patient is exposed to housing built before 1960 — a key risk factor associated with the child’s ingestion of lead.


Finally, appendicitis is the most common childhood condition requiring emergency abdominal surgery, experienced by perhaps four in 1,000 children. Appendicitis is sometimes a difficult diagnosis to make as, again, the presenting signs and symptoms are so vague — abdominal pain, nausea and vomiting, and fever are often mentioned. Even today, more than a quarter of children with appendicitis will perforate the organ, which causes the complications associated with this condition. Generally, the complication is infection, which is treatable.

Low mortality, and apparently not significant lifetime morbidity, is associated with appendicitis. Thus, the monetary exposure to the pediatrician for failure to timely diagnose this condition is not as substantial as in cases involving neurologic impairment.

Sean F.X. Dugan is a Senior Partner at Martin Clearwater & Bell LLP.