Bringing a Malpractice Claim Against a Pediatrician

A child's doctor be sued for medical malpractice, just like any other doctor. Here are the legal issues parents should be aware of.

By , J.D. · DePaul University College of Law

Parents are extraordinarily protective of their children, especially when they are experiencing medical problems. So, when a child is caused harm by the doctor entrusted to treat them, a pediatrician is sure to get a mouthful from an angry parent - if not a notice of legal action.

This article will discuss the main legal issues parents should consider before "lawyering up". We will touch on a few of the most common types of pediatric malpractice claims, and will then outline the legal aspects of a malpractice lawsuit.

Pediatric Malpractice

Pediatric malpractice is a fairly common form of medical malpractice, at least when it comes to allegations of wrongdoing. Studies by the American Academy of Pediatrics (AAP) consistently show that nearly one third of all pediatricians will be sued at some point during their careers. As a result of the significant harm that can result from pediatric mistakes, medical malpractice lawsuits against pediatricians tend to be more costly to defend than lawsuits against most other specialists.

Common Types of Pediatric Malpractice Claims


According to the AAP, the most common illness associated with pediatric malpractice cases in the United States is meningitis. Meningitis spawns a particularly high number of pediatric malpractice lawsuits because it can be difficult to diagnose in pediatric settings.

A lawsuit involving meningitis can result when an infant develops early symptoms of meningitis, but a physician misreads the symptoms and fails to make a correct initial diagnosis early enough. The infant's health deteriorates as the meningitis advances, and before the physician has another opportunity to examine the infant, the harm may become irreversible.


According to the AAP, 27% of infants suffering from appendicitis are misdiagnosed. Female patients are particularly susceptible to misdiagnosis as symptoms are attributed to pelvic inflammatory disease or urinary tract infection.

Similar to meningitis cases, appendicitis cases often result from a failure to properly diagnose the illness. The proper treatment is not given, and the illness develops to a stage that is much more difficult to fully reverse, even when it is understood.

Medication Errors

These cases constitute more than five percent of pediatric malpractice cases. Errors arise in one of four ways:

  • ordering (56% of errors)
  • administration (wrong drug, dose, timing or technique) (34% of errors)
  • transcription (6% of errors), or
  • dispensing (4% of errors).

According to the AAP, when medication errors occur, physicians are at fault 69% of the time, nurses 13% of the time and pharmacies 8% of the time.

The Malpractice Lawsuit

Most medical malpractice lawsuits, including those arising from pediatric negligence, revolve around two critical elements:

  • negligence on the part of a health care provider (i.e. a pediatrician), and
  • harm caused by that negligence.

Negligent Medical Treatment

A pediatrician or other doctor acts negligently when he or she fails to provide treatment that meets the level of skill or competence that most other doctors would have provided under similar circumstances. In medical malpractice lawsuits, patients must prove two things to demonstrate negligence:

  • the existing standard of care, and
  • how the doctor failed to meet (breached) that standard of care.

The "standard of care" varies from case to case. In pediatric malpractice cases, the standard of care might require a doctor or hospital to:

  • properly diagnose meningitis, appendicitis, or pneumonia shortly after the infant begins to experience symptoms, or
  • provide the proper dose of the proper medication (and at the proper time).

In the vast majority of cases, proving the standard of care requires expert testimony. The patient's parent or guardian (usually through a medical malpractice attorney) consults an expert witness who offers an opinion as to the quality of care that most pediatricians would have provided in similar circumstances. The qualified expert will offer his or her opinion on what a reasonably skilled and competent pediatrician would have done under circumstances similar to those that gave rise to the alleged malpractice.

The next step -- establishing the breach of the standard of care -- means showing how the doctor or hospital was negligent. This step also involves use of expert testimony, methodically showing what the pediatrician did or failed to do in the instant case, and how that conduct fell short of the standard of care.

For example, if the standard of care required the doctor to diagnose meningitis within 12 hours of the presentation of symptoms, failure to do so would amount to a breach of the standard of care (and therefore also amount to negligence).

Showing Harm Caused by the Negligence

In order to win a pediatric malpractice lawsuit, the patient must prove that the doctor's negligence caused foreseeable harm. This harm can take many forms, including:

  • pain and suffering, and
  • cost of past and future medical treatment.

The critical issue is whether the negligence actually caused the harm. It is insufficient to show that a patient suffered harm after a mistake was made. For example, a mistake in diagnosis is one thing, and a child's condition might worsen afterwards. But the key is showing how the child was harmed through the misdiagnosis -- in other words, what harm and losses would have been avoided if the pediatrician had recognized the condition and treated it quickly and competently? This again, is where a qualified expert's testimony will come into play.

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