Battle v. Memorial Hospital At Gulfport

228 F.3d 544 (5th Cir. 2000)

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Nature of the Case

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Facts

Fifteen-month-old Daniel suffered from viral encephalitis. Daniel was healthy and normal until December 22, 1994, when he developed a fever and sores on his tongue. P took Daniel to his pediatrician, who diagnosed an ear infection and tonsillitis and prescribed a course of antibiotics. The condition did not improve, and Daniel's jaws were snapping shut. P called 911 because Daniel's face began to twitch and his eyes rolled back. Daniel was taken to D and seen in the emergency room by Dr. Graves and Dr. Sheffield. Dr. Sheffield performed a lumbar puncture, which Dr. Graves interpreted as normal. After x-rays and some blood work, Daniel was diagnosed with febrile seizures, pneumonia, and an ear infection. He was discharged and went home with a new set of antibiotics. Daniel was continuing to have seizures. Dr. Reeves instructed P to take Daniel back to the Memorial Hospital emergency room where he was seen by Dr. Aust. Dr. Aust instructed her to 'not bring that child right back in here because Dilantin takes time to work.' When the Dilantin wore off, Daniel's seizures returned and continued on and off throughout the day on December 26. P called Dr. Reeves again. Dr. Reeves instructed her to take Daniel to Memorial Hospital and have him admitted, which she did. Drs. Aust and Reeves ordered a CT scan, without contrast, which was read as negative. They also ordered an EEG, which was not read until seven days later. When read, it was grossly abnormal. At 5:00 p.m. on December 27, Dr. Reeves's partner, Dr. Akin, saw Daniel. She diagnosed viral encephalitis, possibly the rare and dangerous herpes simplex encephalitis and initiated treatment with Acyclovir, a drug that can halt the progression of HSE in some patients. She then arranged for a helicopter to transport Daniel to Tulane Medical Center where he could receive care from an infectious disease specialist. When Daniel arrived at Tulane around midnight of December 27, health care personnel immediately did a lumbar puncture which was grossly abnormal. They also performed a CT scan, with and without contrast, and an MRI. All the tests revealed abnormal results consistent with HSE. Daniel was discharged from Tulane on February 1, 1995, in a near vegetative state. He will require 24-hour-a-daycare for the rest of his life. Ps medical malpractice claims against Dr. Reeves, Dr. Aust, Dr. Aust's practice group, Emergency Care Specialists of Mississippi, Ltd. and Memorial Hospital. Prior to trial, the district court granted summary judgment for D on Ps' state law claims, finding that the claims had not been filed within the controlling Mississippi one-year statute of limitations. At the close of Ps' case, the magistrate judge granted judgment for D on the EMTALA claims. A unanimous jury verdict in favor of Defendants Reeves, Aust and Emergency Care Specialists of Mississippi was entered on February 8, 1999. This appeal resulted.