How To Prove Pediatric Malpractice Against a Medical Professional November 30, 2023.

A mother and little girl sitting at a doctors office with a nurse.

When taking your child to a doctor, you expect the highest level of care for your child. Doctors who work with children have the tricky job of deciphering through a child’s symptoms if they do not talk yet, or can not fully explain how they are feeling. The doctors have to look closely at the child’s symptoms and perform tests to determine what is wrong with them. If the doctor does not act reasonably and breaches the standard of care, then this could lead to a pediatric malpractice case. 

Pediatric malpractice can occur if the doctor:

  • Fails to communicate with the parents/ child
  • Fails to diagnose
  • Misdiagnoses the symptoms
  • Causes severe injury or death

Types of Pediatric Malpractice

Communication Errors

Communication errors can occur between the doctor and the patient or between the doctor and other medical professionals. When a doctor is communicating with a child and their parent, they need to be clear so there is no confusion. A common miscommunication error is the wrong dosage of a medication or the wrong time to take the medication. Not enough medication will not help the patient, and too much medication could lead to horrible outcomes, like an overdose.

Miscommunication between doctors and other medical professionals happens more often than it should. Whether this is incorrectly reporting the child's symptoms or failing to update current medical history and medications, it could lead to very dangerous outcomes.

Failure to Diagnose/ Misdiagnosis

When your child winds up having an unknown illness, it causes stress among the family. It is even more stressful and frustrating when the doctor does not take the concerns seriously, or the treatment they give does not help. A doctor's duty is to perform the correct tests to diagnose what is wrong. So when they do not perform tests or fail to diagnose the child, then there is a big problem.

Misdiagnosing a patient can also lead to a pediatric malpractice case. Typically if a disease or illness is found early, then the patient has a higher chance at a full recovery. But, if an illness is misdiagnosed and the patient does not get the correct treatment for months or years, then this could greatly affect their future.

Pediatric Negligence

Ignoring a child's symptoms is considered pediatric negligence. If a parent goes to the doctor with concerns that their child has an illness, and the doctor does not perform the correct tests, then they are being negligent. All concerns from a parent and child should be checked up on, to ensure that they can be treated accordingly.

How to Prove Pediatric Malpractice

To have a case for any type of medical malpractice you need to be able to prove 3 factors.

 You have to be able to prove that:

  • There was a breach in the standard of care
  • There was an injury to the patient
  • The injuries were caused by the doctor or other medical professionals

Proving who is liable in a pediatric malpractice case is very difficult. For this reason we recommend hiring an attorney who focuses on medical malpractice cases. These cases are very time consuming and require a lot of medical knowledge, so don't fight these hospitals alone.

Once a medical malpractice attorney is hired they will be able to go through all of the facts in your case to establish who is at fault. The attorney will also hire expert witnesses. An expert witness is a person with extensive experience and knowledge in a field that relates to the specific case. The expert witness is called to further establish fault against the healthcare facility or medical professional.

Damages That Can Be Recovered From Pediatric Malpractice

The amount of compensation is based on the child’s health problems, and how that will affect them in the future. Damages that can be recovered from pediatric malpractice include:

  • Pain and suffering
  • Current and future medical costs
  • Expenses for daily care
  • Decreased quality/ enjoyment of life

The damages are not limited to only the ones listed above. The child and family may be able to receive compensation for any losses they experienced or will experience in the future.

The Statute of Limitations for Pediatric Malpractice

In Ohio, medical malpractice victims have 1 year to file a claim against a healthcare facility or medical professional from the date it occurred, this is called the statute of limitations. However, pediatric malpractice has a different statute of limitations. The victim of pediatric malpractice will have 1 year after they turn 18 to file a claim, no matter what age they were when the malpractice occurred. So, for example, if a child experienced pediatric malpractice at age 10, they would have 9 years total to file a claim.

Recent Pediatric Malpractice Case: Take Care of Maya

A pediatric malpractice case that has recently made headlines is the Take Care of Maya trial. Following the Netflix documentary “Take Care of Maya” which came out in 2023, the trial got a lot of media coverage. 

These unfortunate events started in 2015 when 10-year-old Maya Kowalski, went from being a healthy child to suffering from severe pain. Her parents, Jack and Beata Kowalski, desperately tried to find out what the cause of the sudden illness was. After several doctors failed to correctly diagnose her, Maya was finally diagnosed with Complex Regional Pain Syndrome (CRPS). This condition is still not fully understood by doctors. Mayo Clinic defines CRPS as chronic pain that forms after an injury, surgery, or heart attack. The doctor who initially diagnosed Maya with CRPS suggested that she start high dosage Ketamine treatment. Ketamine is a drug used for pain management. The Ketamine treatments began to work, until a severe flare-up in 2016.

Jack and Beata took her to Johns Hopkins All Children's Hospital in St. Petersburg, Florida. Little did they know this trip was life-altering. During Maya’s stay Beata, who was a nurse herself, suggested high-dosage Ketamine treatments which had helped Maya in the past. But, the medical staff believed Maya was making up her symptoms when her mother was around, and that she was actually not in pain. With Beata suggesting the Ketamine treatments and the medical professionals dismissing Maya’s diagnosis, this made the medical staff suspect Beata had Munchausen by proxy. Munchausen by proxy is a disorder where a parent or caregiver seeks medical attention for their child who is perfectly healthy.

Child Protective Services was called and after a short, ten minute interview with Jack and Beata, Maya was taken into state custody without her or her parent’s consent. This meant her parents were not allowed to visit her, and were only allowed to talk to her a few times a week during a monitored phone call. Maya went 3 months without seeing her parents. Within that time frame, the medical professionals blatantly ignored her condition and neglected her. They would try to make her walk, even though she was unable to, and would say that she was making it up. The medical staff did not give Maya the treatment she needed, and instead left her neglected and isolated.

After 3 months of Maya being in state custody, Beata took her own life because she could not stand seeing her daughter suffer anymore. Psychologists later said that Beata did not suffer from Munchausen by proxy, meaning that Maya was falsely imprisoned by the hospital. 

Maya (now 17 years old), her brother, and father, filed a lawsuit against Johns Hopkins All Children's Hospital for medical malpractice and false imprisonment. After a long and extensive, 2-month trial Johns Hopkins All Children’s Hospital was found liable on all 7 charges brought before them. 

The charges included:

  • Battery of Maya Kowalski
  • False Imprisonment of Maya Kowalski
  • Emotional distress of Maya Kowalski
  • Emotional distress of Beata Kowalski
  • Wrongful death of Beata Kowalski
  • Fraudulent billing of Jack Kowalski

 The Kowlaski family was awarded $261 million in damages by the jury.

Contact Our Pediatric Malpractice Attorneys Today

To get justice for your child, hire a pediatric attorney that you can trust. With almost 40 years of experience, The Mellino Law Firm has recovered tens of millions of dollars in damages for our clients. Since our main focus area is medical malpractice we have the knowledge and experience to get your family the compensation that you deserve. 

Contact our office at (440) 333-3800 or fill out our contact form.