A boy age 3 years and 4 months was brought to the emergency department at 6:40 a.m. with complaints of cold symptoms, including congestion, runny nose, and a fever for two days. His past medical history included typical childhood illnesses, and his immunizations were up-to-date.

Vital signs were temperature 103.6ºF, heart rate (HR) 156, and respiratory rate (RR) 40, and he weighed 14.6 kg. Other than nasal congestion, his exam was normal. It was documented that he was alert, making good eye contact, and cooperative. His heart, lung, abdomen, extremity, and neurological examinations were all normal. Notably absent were meningismus, Kernig’s, and Brudzinski’s signs.

He was given an antipyretic and observed, during which time his temperature decreased to 101.4ºF and then 98.9ºF. He remained awake, alert, and appropriate. He was diagnosed with an upper respiratory infection, and his parents were told to follow up with his primary care physician (PCP) in one to two days or return to the emergency department if he became worse.

That afternoon, he was seen by his PCP for persistent fever and cough. His exam was unchanged, and symptomatic treatment was continued.

The next day at 7:10 a.m., he was brought back to the emergency department with complaints of rapid breathing and weakness. His history included fever, cough, and vomiting six times. In addition, his shortness of breath was reported to be increasing. Sore throat and chest and abdominal pain were denied.

Vital signs were temperature 100.8ºF, HR 155, RR 38, blood pressure 124/91, and oxygen saturation of 99 to 100 percent on room air. He weighed 14 kg. He again made good eye contact, and other than the nasal congestion, his exam was unremarkable. Specifically, he had moist mucous membranes, no rash, and no focal neurological or meningeal signs, and he was consolable.

At 7:30 a.m., he was given trimethobenzamide for nausea and an oral fluid challenge. At 8:30 a.m., a point-of-care glucose test was 97. At 9:41 a.m., a chest X-ray and urinalysis were obtained, and the child was noted to have difficulty bearing weight.

At 10 a.m., an IV was started, and labs were drawn. The boy’s urine was positive for glucose, protein, and ketones. His hemoglobin was 14.2, and the white blood cell count was 0.6. The decision was made to transfer him to a hospital with a pediatric intensive care unit (PICU), and he received ceftriaxone and a 300 ml (20 mL/kg) IV fluid bolus. A lumbar puncture (LP) was performed, yielding cloudy fluid, which later grew Streptococcus pneumoniae.

At 11:30 a.m., the patient was placed in an ambulance. His most recent vital signs were temperature 101.4ºF, HR 138, and RR 54. Following the 10-minute transfer, as he was being wheeled to the PICU, he arrested and was resuscitated. However, he died later that day. A lawsuit was subsequently filed, and the plaintiffs were awarded more than $1 million as a settlement.

Expert Witness Statements/Allegations About Standard of Care and ACEP Guidelines

ACEP has two options to review expert witness testimony (plaintiff or defense). If the witness and referring physician are both ACEP members, a formal ethics complaint can be filed. The testimony is then reviewed by the Ethics Committee in the context of ACEP’s policy Expert Witness Guidelines for the Specialty of Emergency Medicine. Its recommendation is then reviewed by the Board of Directors, and an adverse decision can lead to a private or public letter of censure or suspension of membership. The member may request an appeal hearing prior to an action taking effect.

If the witness is not an ACEP member, the testimony can be referred to the Standard of Care Review Panel, which will then review the testimony and report its findings in ACEP Now. This is done to reduce the chance that such testimony erroneously establishes the standard of care for future cases. A full description of this process can be found at www.acep.org/StandardOfCareReview.

In this case, the referring physician was an ACEP member (not involved in the care) and the plaintiff expert had resigned his membership, so the case was directed to the Standard of Care Review Panel.

The member was concerned about several of the plaintiff expert’s statements, such as “All children with an elevated heart rate and respiratory rate require a full septic workup.” The witness also repeatedly said systematic inflammatory response syndrome (SIRS) criteria should be applied to children and said nasal discharge did not constitute a source of infection. In addition, the panel identified the following issues in the 300 pages of transcribed testimony:

An inappropriate, inflammatory tone and word choices amounting to hyperbole; outlandish statements (including unsupported claims); and apparent pandering to the plaintiffs were noted. Also, with regard to several key aspects of the presentation, the witness gave significantly more weight to the recollections of the parents than to the medical record.

The expert witness also stated that a complete blood count (CBC) can differentiate between viral and bacterial infections, rhinorrhea is generally due to allergies and not a respiratory infection, and fever cannot cause an elevated respiratory rate. He also suggested a head CT is required prior to an LP.

He also said he thought the ACEP Expert Witness Guidelines did not apply to him, even though he was an ACEP member at the time of the testimony.

Issues Considered by the Standard of Care Review Panel

• The witness’s manner of speaking and tone
• Reliance on the recollections of lay relatives over the medical record
• Application of SIRS and sepsis criteria to children
  • The making of broad, unsupported statements and suggestions including:
  • A CBC can differentiate between viral and bacterial infection
  • Rhinorrhea is generally due to allergies and is not a symptom of an upper respiratory infection
  • Fever cannot cause an elevated respiratory rate
  • A CT is required prior to an LP, including in the context of this case
• The witness’s statement that the ACEP Expert Witness Guidelines did not apply to him

Conclusions of the Panel

Physicians may provide expert opinion to the court, and they have a right to be compensated fairly for their time and effort in doing so. Expert testimony is based on the expert’s opinion but must be supported by the medical evidence to a reasonable degree of certainty. Hyperbole, insults, name calling, inflammatory language, and attacks on the character of others have no place in medicine (including expert testimony).

While observations of patients and family members are very important and sometimes vital to the care of patients, it is inappropriate to use their recollections to discredit or supersede a medical record unless there is an independent reason to doubt the veracity of the record.

Much is written about the approach to febrile children, particularly those without a source for the fever. There are no SIRS criteria to apply to children, and it was inaccurate and misleading to insist such a standard existed. It is false to say this child required a sepsis workup due to his vital signs.

The panel felt none of the four other statements above were supported by any literature, and all were incorrect:

• A CBC is one piece of information that can be helpful in determining whether a serious illness exists, particularly an infection. It is not automatically required in a child of this age with a fever, even with an elevated heart rate and respiratory rate.
• Rhinorrhea may be a symptom of upper respiratory infection, including viral infection.
• It is generally accepted that fever alone can cause an elevated respiratory rate as well as an elevated heart rate.
• The literature does not support CT prior to LP without suspicion of a space-occupying lesion, and the radiation exposure most likely outweighs any benefit in the pediatric population.

When applicable, ACEP policies apply to all members, and that includes the Expert Witness Guidelines, as the policy itself makes clear. Apparently, the witness either changed his mind about this or contradicted his testimony by subsequently resigning his ACEP membership, possibly to avoid sanction by the College. The consensus of the Standard of Care Review Panel was that the physicians treating the patient in this case met the standard of care.

Dr. Pattavina is an emergency physician at St. Joseph Hospital in Bangor, Maine, and immediate past President of the Maine Medical Association.