Monday, June 25, 2012

Delayed Diagnosis of Torticollis/Plagiocephaly Lawsuit

I have recently posted a couple of articles concerning the infant condition of congenital torticollis which is encountered often in Pennsylvania pediatric practices. Below is a summary of a medical malpractice lawsuit in New Jersey concerning the delayed diagnosis and response to infant torticollis that resulted in significant plagiocephaly in the child plaintiff.

In this medical malpractice action IANNUZZI vs. STRADER, the plaintiff, mother of the child, contended that her sons two pediatricians, who named as defendants, negligently failed to timely diagnose and refer regarding the infant plaintiff's skull condition, plagiocephaly, a cranial deformity most often caused by torticollis. As I have discussed before, plagiocephaly is a condition in which the back of the head becomes flattened in a wedge shape which, in turn, causes the forehead to protrude.

The parents noticed some flattening of the back of the plaintiff's head and a slight forehead protrusion shortly after birth. The mother contended that she repeatedly told the defendant pediatricians of her concerns and was repeatedly advised that the condition would correct itself. The condition continued to progress until at nine months of age, the parents demanded a referral to an appropriate specialist. The infant plaintiff was then referred to a craniofacial center. Helmet therapy was instituted, in which the child wore a helmet seven days per week, 24 hours per day except when his hair was washed. Although the therapy provided substantial improvement as compared to when it began, a significant permanent deformity remained.

The plaintiff's craniofacial expert opined that the defendant pediatricians should have referred the infant patient to a craniofacial specialist no later than two to three months after birth. The expert explained that the deformity is progressive in nature and unless helmet therapy is instituted early, it will be of limited benefit because of the extensive growth of the skull and fusion of the plates`. The plaintiff's expert contended that the earlier the helmet therapy is begun, the greater the chances of an optimal result. This expert opined that if the plaintiff had been referred in a timely manner, his condition probably would have resolved.

The parents testified that by the time the child was referred to an ENT for torticollis at seven months, the deformity was very observable. The plaintiff's expert maintained that commencement of therapy at this date would have probably enabled the plaintiff to obtain a better final result, notwithstanding that it was doubtful that it could be fully corrected as of this late time. The torticollis was subsequently resolved by a different, nonparty physician.

The defendant pediatricians denied that the parents made repeated and early complaints of any deformity. The defendant pediatricians also denied that the signs of any abnormalities were readily apparent, contending that they reasonably believed that they were related to the child's sleeping on his back in conformance with recent pediatric guidelines to reduce the risk of SIDS. The plaintiff countered that the mother was a very concerned parent, had brought the child to the defendants' office some 15 times over the first ten months of life because of a variety of factors, including colds, and argued that it was incredible to believe that such a concerned parent would fail to advise the defendants of a perceived cosmetic deficit that was progressing. The plaintiff presented a time line describing the progression of the condition during the first ten months and interspersed the time line with photographs which, the plaintiff maintained, showed a very significant progression, arguing that the defendants' position as to not being advised of the condition should be rejected.

The testimony established that the infant will suffer a very noticeable deformity for the remainder of his life. The plaintiff's expert psychiatrist contended that the child will probably suffer significant emotional turmoil because of the deficits as he goes through elementary school and that the turmoil will clearly accelerate when he reaches the dating age. The plaintiff further contended that the jury should consider that he will be reminded of the deficit on a daily basis for the rest of his life whenever he looks in a mirror.
It found each of the pediatricians 47.5% negligent and rendered a gross award of $ 2,000,000.

The defendant pediatricians had argued that the alleged cosmetic abnormalities were within the acceptable range and contended that an absence of an earlier referral to a craniofacial specialist did not reflect a deviation from the standard of care. It is believed that the plaintiff, in countering this position, made effective use of demonstrative evidence in the form of photographs taken by the parents during the first ten months of the infant's life. The plaintiff used this evidence in a time line to compare the photographs at various points along this ten-month period to argue that based upon this evidence, the plaintiff's expert's position that a referral to a craniofacial surgeon should have been made no later than the age of three months, should be accepted. Additionally, the pediatricians' notes contained several mentions of discussions on the topic.

Regarding damages, the plaintiff argued that the jury should consider that the emotional consequences on this child as he moves through grammar school will be extensive and that this emotional upset will clearly heighten as the plaintiff reaches dating age. Additionally, the plaintiff stressed that he will suffer the emotional turmoil associated with the very noticeable cosmetic skull deformity for the remainder of a lengthy life expectancy and that he will be reminded of the deformity each and every time he looks in a mirror. Finally, it should be noted that the infant plaintiff, age 4 1/2 at trial, was present in court for a very brief period only, enabling the jury to fully appreciate the extent of the deformity while avoiding the risk that the impact of his appearance would be minimized by a more prolonged presence.

Also in this case, there was an apparent reluctance of the treating physician to refer the patient to an appropriate specialist, and the physician only did so upon the absolute demand of the parents at a particularly late date in the ongoing progression of this condition. Although there was no evidence presented in this case as to any particular motivation for such reluctance,

this case can be a reminder to physicians of the liability pitfall that can be incurred by a failure to make appropriate referrals on a timely basis, especially if those referrals are discouraged by some health insurer or HMO as being not in conformity with their protocols or guidelines. Practitioners are cautioned in this regard that they have a primary obligation and fiduciary duty to the patient and will not be excused from deviations from acceptable standards of practice in failing to refer a patient, because to do so would be inconsistent with the dictates of any HMO or insurance carrier.

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