A New Jersey jury recently considered the case of a 10 year old boy who is permanently brain damaged from an allergic reaction.

            The boy had suffered a severe allergic reaction after eating a candy containing peanuts on Christmas Day in 1996.  The family had received the candy as a gift on Christmas eve.

            The child had suffered reactions to peanuts on two other occasions.  At age 15 months the boys pediatrician had treated him for a rash after eating peanut candy.  At the age of 6, the same pediatrician treated him for wheezing and a rash after eating peanuts.  The next recorded event was at the age of 10 when he went into cardiac arrest and suffered brain damage.  The boy was also known to be asthmatic.

            The parents knew of the boys allergy to peanuts and had warned him not to eat candy or other food with peanut contents.  However, the parents sued the pediatrician and the boys allergist.  They asserted that these physicians had failed to inform them of the severity of the possible consequences from a reaction.  They had also, according to the plaintiff's expert, failed to inform the parents of the need to carry an epi-pen.  That expert stated the failure to inform the parents of both these things deviated from the standard of care.

            The jury awarded $10 million dollars finding the pediatrician 80% liable and the allergist 20% liable.  However, prior to trial the pediatrician had settled the case, so he was not responsible for the jury's award.  The plaintiff intended to seek to have the allergist responsible for the entire judgment.  Two other physicians who were sued were exonerated by the jury.  One physician saw the boy for an asthma attack and referred him to an allergist.  The other saw him for an eye injury.  Apparently, because it could not be shown what either physician knew of the peanut allergy, the jury did not hold them responsible for the outcome.

            The difficulty in defending a case of this nature is that the boys damages are very significant and the plaintiff's argument fairly simple: but for being told that an easily attainable and usable epi-pen was a necessity, the child would be a normal and healthy teenager.  For this reason, prevailing against the parents who are asserting a lack of knowledge, will be difficult unless there is some proof that, at the time of the earlier incidents, the parents were informed of the serious risks and the need for the epinephrine.  Obviously, contemporaneous notes would be the most helpful in this regard.  Further, providing the parents with written information about the allergy, its known side effects and the most effective immediate treatment would also be helpful in the formation of a defense. 

            Physicians need to carefully detail the information given the parents about the case and treatment of chronic childhood illnesses.  The natural sympathy for an injured child requires the strongest contemporaneous evidence that the time necessary to convey the medical information to the parents was thoughtfully, conveyed.

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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Child Permanently Brain Damaged from an Allergic Reaction

by Attorney Frank E. Reardon

February 2002