Doctor must pay for lack of test $275,500 is assessed in lead poisoning.

November 15, 1991|By Timothy B. Wheeler | Timothy B. Wheeler,Evening Sun Staff

An East Baltimore doctor has been ordered to pay $275,500 for failing to order a lead-poisoning test on a toddler who was later hospitalized with dangerously high levels of the toxic metal in his bloodstream.

The case, decided this week by a three-member panel of the Maryland Health Claims Arbitration Office, may be the first of its kind in the nation.

Lead-poisoning experts say they know of no other malpractice awards for failing to test children, even though many doctors apparently do not heed recently strengthened federal guidelines calling for screening virtually all children.

"I'm surprised it hasn't happened before," says Dr. Julian Chisolm, a nationally recognized lead-poisoning researcher who treats seriously poisoned children at the Kennedy Institute. "Not nearly enough testing is done, even in high-risk areas."

The health claims panel ordered Dr. W. Duncan McCleary, a pediatrician, to pay $250,500 to Bruce Foehrkolb Jr., now 7, for his medical expenses, suffering and future care. Another $25,000 was awarded to his mother, Judy Shell.

Lawyers for both sides said yesterday they plan to appeal the decision to Baltimore Circuit Court.

The family's lawyer, Edward C. Bacon of Landover, contended that the doctor should have recognized the need to test the boy when he was about 12 months old, in large part because the family was living in early 1986 in a rundown rented rowhouse with peeling lead-based paint and crumbling plaster.

The house was later inspected by the City Health Department and cited for lead-paint violations, Bacon said. The family has a separate lawsuit pending against the owner and manager of that house.

Last year, 1,445 Maryland children were identified with lead poisoning, more than double the 1989 tally, says the state Department of the Environment. Baltimore was home to 1,148 of them.

The biggest source of lead exposure for young children is dust they swallow from deteriorating lead-based paint in or on their homes. But even well-maintained older homes may pose a hazard for children if renovations or even repainting is done without precautions against stirring up lead-paint dust.

McCleary actually wrote "needs blood lead," a reference to the test for lead poisoning, in the Foehrkolb boy's medical file after his mother had brought him in in April 1986 complaining of a cold, according to pleadings in the case.

The boy's mother brought him back to see McCleary three more times in the next few months, Bacon said, but no test was given.

The boy finally was tested in September 1986 after the mother switched doctors, Bacon said. The child spent two months being treated at Kennedy Institute because tests revealed he had about 75 micrograms of lead per deciliter in his blood, a severe case of poisoning.

Excessive exposure to lead can cause hyperactivity, mental retardation and even death in high enough doses. Ingesting even low levels of lead can lead to brain damage and learning and behavioral problems in young children.

Bacon said he was pleased the panel had found the doctor negligent for not testing, but he was dissatisfied with the amount of the award.

An economist hired by the family estimated the boy had lost more than $1.4 million in lifetime earnings because of his poisoning, and that he would need more than $2 million for tutoring and therapy to compensate for lasting learning and behavioral problems from his poisoning.

Kathleen Howard Meredith, the doctor's lawyer, denied he bore any responsibility for the child's poisoning. Meredith said the doctor's expert witness, a pediatric neurologist, had found no evidence of lasting lead-related injuries in the boy.

She acknowledged that McCleary had written that the child should be tested, but she contended that the test was routine, not because the doctor suspected lead poisoning.

A blood sample was not taken in later office visits because the child was still sick, Meredith said. The lawyer said her client had instructed that the boy should be brought back for a test once he was well, but "the mom did not bring him back."

The U.S. Centers for Disease Control and the American Academy of Pediatrics both have urged doctors since 1985 to question their patients about possible exposures to lead and to test those at highest risk. But the doctor's lawyer noted that those were only recommendations and are not widely followed.

"In 1985-86, blood-lead screens were not being done on a routine basis by private physicians in Baltimore," she said. "It simply was not the standard of care."

However the case comes out, public health advocates say they hope it will prompt doctors to pay closer attention to what some experts see as the leading environmental health threat to young children.

"We've been banging our heads against the wall, asking what is it going to take to get physicians to screen," said Don Ryan, executive director of the Alliance to End Childhood Lead Poisoning in Washington.

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