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Can I sue an Urgent Care physician for misdiagnose, my 19 mnonth old son passed away 6 weeks after the E.R. visit?

Hampton, VA |

On July 6, my son was constantly vomitting, so I took him to the E.R. after I got off work. We checked in at 9pm, and was out of there in an hour! The physician listened to his heartbeat, checked his ears and nose. Only thing he said was "he seemed fine, just a minor ear infection, nothing risky". He prescribed him an anti-vomitting tablet (which was cut in half), though nothing for antibiotic. My son didn't eat regularly and the night before he passed, he was fussy, I assumed he was tired. The next morning, I found him face down on his crib without a heart beat!! Autopsy was done, and examiner concluded it was Sudden Unexplained Death of a Child (since he was face down) and Gastroenteritis (inflammation of stomach and small intestines).

Attorney Answers 3


I am sorry to hear about your terrible loss. You need to get copies of the ER records for your son’s visit and then meet with a local medical malpractice attorney to review your options.

Good luck.

DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.

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What an incredibly heart breaking event. I can't imagine how awful it truly is.

If the autopsy says sudden death syndrome, then it is unlikely that the ER physician missed anything. Gastroenteritis is a mild thing, very common, and it likely explains the upset stomach and vomiting. The standard of care would not demand the physician order the child to be hospitalized or monitored. Vomiting and nausea is just too common of an ailment for kids.

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could they have atleast ran a test on his stools?


I am very sorry for your tragic loss. Nothing can replace the loss of a child and an infant's death is a tragic occurrence.

In Virginia, a medical malpractice claim requires evidence from an expert in the same or a similar field as the defendant. If it is alleged that the E.R. physician failed to correctly diagnose a condition that caused your child's death, another physician who practices the same type of medicine would have to provide an expert opinion on how the defendant doctor breached the applicable standard of care and that his breach was directly related to the cause of death. In other words, it would be necessary to prove that if the doctor had made a correct diagnosis, your son probably would have survived.

Given the M.E.'s diagnosis, this appears to be a difficult case to prove. The first step would be to obtain all of the medical records for your son, both before and after the hospital admission. An attorney who handles such cases can then have the records reviewed to determine if there may be a possible case.

This advice is for general guidance only and applies to Virginia. The applicable laws may differ in other states.

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