A Silver Spring pediatrician has been ordered to pay $255,000 to the parents of a 2-year-old boy who died on Christmas Day, 1979, after the physician failed to recognize the symptoms of a fast-developing, lethal disease during telephone consultations.
The eight-man, four-woman jury in Montgomery County Circuit Court deliberated eight hours before returning the verdict late Friday night in a medical malpractice suit against Dr. Frank W. Neuberger of 10301 Georgia Ave.
"It's too early to comment," Kenneth Armstrong, the doctor's lawyer, said yesterday.
The nine-day trial before Judge Irma S. Raker was a battle among experts. Physicians called by the parents, Jack A. and Betty L. Ross of Gaithersburg, said the doctor should have recognized the symptoms of acute epiglottitis, a potentially lethal bacterial infection, and told the parents to take the child to a hospital immediately. Experts called by the pediatrician said the parents did not give enough information over the phone for the doctor to recognize the symptoms.
The child, Brandon Joshua Ross, became ill about 9 p.m. on Dec. 24, 1979, and died about 5 a.m. the next morning, according to the testimony.
The parents said B.J., as they called their son, developed a sore throat about 9 p.m. on Christmas Eve and that after he resisted swallowing a teaspoon of Tylenol Elixer, they called Dr. Neuberger at 11:05 p.m. Neuberger, who was attending a Christmas party at the home of a medical partner, called back five minutes later and was told by the parents that the child had a sore throat, a red cheek and a fever of 101.5 degrees. He prescribed baby aspirin and apple juice, tea or water along with the Tylenol.
The baby's condition worsened throughout the night, according to testimony, and about 2:30 a.m., he began drooling and his lower lip went limp, two symptoms of acute epiglottitis.
The epiglottis is a flap-like structure in the larnyx that folds over the trachea. According to expert testimony, acute epiglottitis develops quickly and untreated has a 25 percent mortality rate. With prompt treatment, however, there is virtually no mortality, according to the experts. Testimony established that normal treatment calls for a child with those symptoms to be seen by a doctor in a place where a tracheotomy can be performed, or an airway otherwise inserted in the throat, followed by the administration of antibiotics.
The parents called the doctor again at 3:45 a.m. and told him that the child was having great difficulty in breathing even though they had given him a steam shower with a vaporizer. The parents, according to the testimony, even put the child up to the phone so the doctor could hear his breathing.
Neuberger said both the mother and child sounded hysterical at the time and he tried to calm them and told the mother to give the baby honey or syrup and benadryl, and keep the child in a room with the vaporizer. He also complained that the parents had not taken the child's temperature, but they said the boy was too fussy and upset for them to do that. Neuberger then told them to bring the boy to his office in the morning.
The father said he sang to B.J. and rubbed his head, finally getting the child to sleep for about 20 minutes. At 5 a.m., the child stopped breathing and the parents called a rescue squad, which arrived at their home at 20 Goodport La. within seven minutes. The child arrived at Shady Grove Adventist Hospital at 5:17 a.m., and was pronounced dead at 6:16 a.m.
Neuberger testified that he never considered that the child might have been suffering from epiglottitis until he learned of the death.
Under Maryland law, medical malpractice charges first are heard by a three-member arbitration panel, composed of a physician, a lawyer and a lay person. If either party is dissatisfied with the finding of the panel, he may appeal to the Circuit Court. In this case, the arbitration panel on Oct. 5, 1981, awarded the Rosses $40,000 on grounds of wrongful death, but both the parents and the pediatrician appealed.
Judge Raker told the jurors that while they were not bound by the finding of the arbitration panel, they should give great weight to it as evidence.
The jury awarded $250,000 to the parents for the wrongful death and $5,000 to the estate of the child. Jack Ross, 33, a real estate leasing agent, and Betty Ross, 32, a former teacher, have another son who was eight months old at the time of B.J.'s death.