Ms P was a nurse practitioner (NP) who was employed by a busy pediatricians’ office. There were two physicians and three NPs in the practice. Ms P was the newest and had only started in mid-2008. She primarily handled well-child visits and was responsible for making sure that a patient’s immunizations were up-to-date. The practice used a well-child template with boxes to check regarding immunizations and a section for notes. Ms P’s notes were regularly reviewed and signed by one of the pediatricians.

Mrs M was the mother of three patients who visited the pediatricians’ practice. She had  5-year-old twins and an infant son named Joe. In March 2009, when Joe was aged 4 and a half months, Mrs M brought him to the practice for a well-baby visit. At that visit, the infant was given the pneumococcal conjugate vaccine Prevnar 7, which provided him with protection against seven serotypes of pneumococcus. 

In February 2010, the Food and Drug Administration (FDA) approved the use of Prevnar 13, which provides protection against an additional six serotypes of pneumococcus than Prevnar 7. The American Academy of Pediatrics (AAP) recommended that children who had already received the Prevnar 7 vaccine should also be vaccinated with Prevnar 13. However, the pediatricians’ practice where Ms P worked did not update its well-child template to reflect this. 

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Mrs M brought Joe back to the physicians’ office three times between May 2010 and November 2011 for the child’s 18-month, 24-month, and 36-month well-child visits. Ms P performed the check-ups, filled out the well-child templates, and submitted them to the physicians for review. All three times, the pediatricians signed off on the evaluations with no questions asked. 

In February 2012, Joe, then aged 3 years and 3 months, became very ill and was taken to the emergency department of the local hospital with symptoms of fever, cough, vomiting, and increasing lethargy. At the hospital, he was diagnosed with pneumococcal meningitis. He was treated with ceftriaxone and vancomycin. However, the infection progressed to encephalitis, subdural empyema, obstructive hydrocephalus, septic shock, and respiratory failure. Joe developed disseminated intravascular coagulation with multi-organ failure. He was hospitalized in the intensive care unit for six weeks. 

During the child’s hospitalization, it was discovered that the pneumococcal strain was serotype 6A, which would have been covered by the Prevnar 13 vaccine. The treating physician at the hospital asked Mrs M whether Joe had received the Prevnar 13 vaccine. Mrs M called the pediatricians’ office and spoke to a medical assistant who looked at the chart and told Mrs M that the child had not received the vaccine, nor had his twin siblings. The children were promptly vaccinated, but Joe was left with permanent seizure disorder, vision impairment, bilateral profound hearing loss, and left hemiparesis.

On the advice of a friend, a distraught Mrs M sought the counsel of a plaintiff’s attorney. The attorney had the child’s medical records, including the well-child notes, reviewed by an expert. The expert told the attorney that the pediatric practice should have been giving children the Prevnar 13 vaccine by the time Joe had his 18-month visit, and certainly by the time he had his 24-month visit. The attorney told Mrs M that he would take the case, and he filed a lawsuit against the pediatric practice.