Herpes Encephalitis Malpractice Birth Injury Claims

Our law firm handles all types of medical malpractice claims in Maryland. Among these malpractice lawsuits are claims for both birth injuries and other injuries from herpes encephalitis.

Herpes Encephalitis Claims

Herpes encephalitis ("HE") is a consequence of herpes simplex virus, a viral infection. There are two types of herpes simplex viruses and those viruses can cause encephalitis: herpes simplex Type 1 encephalitis or herpes simplex 2 type of encephalitis. The herpes simplex 1 is more likely to cause herpes simplex encephalitis.  In older children and adults, herpes encephalitis is caused by the herpes simplex virus type 1 (HSV-1) and in neonates by the herpes simplex virus type 2 (HSV-2).

Herpes encephalitis is rare but has a high rate of mortality. It is reported to occur in 1 out of a million people worldwide annually through incidents may be higher as cases may be under-reported.

This is a brutal disease in infants. If herpes encephalitis is left untreated, the rate of death is approximately 70% of patients. Only 53 percent of infants with HSE developed normally.  Children and adolescents account for nearly 33% of all cases of HSE but are typically the most severe.  

Herpes encephalitis in infants is usually contracted via intrapartum fetal contact with genital HSV infection (85% of cases). Outcomes are significantly improved with rapid antiviral therapy. Unfortunately, early diagnosis and, as a result, prompt treatment is difficult as the viral infection presents similarly to other central nervous system disorders.

In a birth injury case, symptoms of herpes encephalitis usually show between four to eleven days after the baby was delivered. The virus progresses rapidly, and death occurs within 10 to 14 days if left untreated. Long-term brain injuries are common in those that survive.

The disease is preventable in babies, children, and adults if diagnosed and treated early. Acyclovir, an anti-viral, is usually prescribed for treatment. Acyclovir does a great job of stopping replication of the virus.  Medical malpractice lawsuits involving herpes encephalitis typically stem from the failure to diagnose and treat the disease promptly. But often the doctor will fail to order the appropriate diagnostic testing to detect viral encephalitis so that the Acyclovir can be administered.

Diagnosis Errors

What do doctors fail to do that they should do? Often, it is poor diagnostic work. So many of herpes virus birth injury malpractice cases involve the allegation that the diagnosis of herpes simplex encephalitis should have been suspected earlier and treatment begun immediately upon presentation. Immediate diagnosis is key. The results in these cases vary inversely with the duration of illness before treatment.  A proper diagnostic workup often requires an MRI or CAT scan of the brain. Often a lumbar puncture is warranted, particularly if the victim deteriorates mentally and has a fever.

One problem diagnosing herpes encephalitis is that the most common symptoms of infection -- seizures and fever -- have multiple causes.  The malpractice cases are were the doctors jump to a conclusion without ruling out herpes encephalitis. Making matters even more complicated is that the diffuse form of herpes encephalitis can look like HIE on imaging scans.  So it is rare and the path to diagnosis is complex.  But this is what these doctors are trained for because there is so much at stake. 

Sometimes the failure to do all of these things causes no harm if the physician just administers Acyclovir prophylactically. Because while herpes encephalitis is among the most dangerous, it is also the most treatable encephalitis. Doctors sometimes make mistakes and still find a way to successfully treat the patient.

Misdiagnosis often starts with failing to consider HE when there is an abnormal mental function. Children can have impaired motor function, loss of speech or begin sensing unusual smells, sounds or abnormal visual experiences.

Often, doctors will suspect encephalitis but not rule out herpes. Herpes encephalitis demands consideration as part of a differential diagnosis for young children with encephalitis. It is critical that herpes is ruled out because it is a disease that is associated with such tragic consequences.  So if a doctor suspects that herpes simplex encephalitis is present, that standard of care is that you should treat on the basis of that suspicion while the diagnostic information is coming back.

You also see a lot of radiology errors. If a CT scan raises the possibility of herpes encephalitis in a child that is presumed to have a CNS infection, either an MRI or an EEG should quickly follow to confirm the diagnosis.

What Causes Herpes Encephalitis?

Though the exact pathology of HE is not entirely understood, in many cases in children over the age of 3 and adults, brain lesions occur on the temporal lobe and frontal lobes and sometimes on the parietal lobe. However, in neonates, the lesions are generalized.

Herpes encephalitis can result from both infection in utero and at birth. Often the answer to this question is the battlefield of a medical malpractice trial involving herpes encephalitis.  

Diagnosis is usually made by positive cerebrospinal fluid (CSF) viral cultures, positive immunoglobulin G against herpes simplex virus from neonatal blood, or positive polymerase chain reaction (PCR) for herpes simplex virus from CSF.

Symptoms in Birth Injury Cases

Doctors treating infants have to look for the subtle clues of herpes encephalitis in order to promptly diagnose and initiate treatment in newborns, such as:

  • vomiting
  • lack of energy
  • lack of appetite
  • a full or bulging soft spot
  • crying in an infant that cannot be soothed and may get worse when the child is picked up or handled
  • body stiffness
Symptoms for Children and Adults

These are the common symptoms in older children and adults:

  • Fever (most common)
  • Headache
  • Change in mental state
  • Seizures
  • Throwing up
  • Focal weakness
  • Loss of memory
Herpes Encephalitis Settlements and Verdicts

These are plaintiffs' verdicts that give some idea of the value of a successful herpes encephalitis case that settles or goes to verdict. But keep in mind that each case is very different, and it is impossible for any case or series of cases to predict the value of another.

  • January 2016, New York: $5 Million Settlement: An 18-month-old child is admitted to the ER with what is thought to be a febrile seizure and a two-day history of an upper respiratory infection. The child is given a CT scan. She gets a neurology consult and is admitted. She gets a lumbar puncture. The puncture comes back negative for bacterial infection but positive for red blood cells. Still, she is diagnosed with an enterovirus in spite of the fact that these findings were at least suggestive of HSE. Plaintiff contends that if Acyclovir had been given, she would not have suffered significant neurological deficits.
  • March 2011, Pennsylvania: $23 Million Verdict: A 36-year-old event planner had been experiencing fever, headaches, nausea, and drooping on the left side of her face for five days. Her mother noticed her daughter sounding confused on the phone and decided to take her to Roxborough Memorial Hospital in Philadelphia where she was given a CT scan and a lumbar puncture. The CT scan showed up normal; however, the puncture showed inflammation. The woman was admitted and given an IV treatment. A physician ordered Acyclovir to be administered to the woman STAT; however, the urgency was not noted, and the woman was not administered the medication until almost 5 hours later. Unfortunately, by the time the drug was administered, the woman had become comatose. She was transferred to Hahnemann University Hospital where she was placed in a medically-induced coma. She remained hospitalized for three weeks before being transferred to a rehabilitation facility. She suffered severe short-term memory loss and is severely mentally handicapped. The woman sued Roxborough Memorial Hospital and the treating physicians for medical malpractice. Plaintiff’s counsel claimed Plaintiff’s symptoms made it obvious that she was suffering from herpes encephalitis upon her arrival and should have been immediately treated with Acyclovir the moment the CT scan ruled out a stroke. Defendants denied the assertions, claiming the symptoms Plaintiff presented with were consistent with multiple conditions and the diagnosis was reached promptly. A Philadelphia jury found Defendant hospital 100% negligent and rendered a $23,000,000 verdict.
  • July 2010, California: $6. 5 Million Settlement: A man had presented himself to a local hospital emergency room with complaints of fever, cough, and congestion. He was diagnosed with an upper respiratory infection and discharged. However, two days later he was taken by ambulance to the same emergency room after showing signs of fatigue and confusion. He was admitted with a temperature of 103.3 and unable to follow commands. The emergency physician opined the man may have encephalitis or bacterial meningitis and a lumbar puncture was performed to rule out meningitis. Unfortunately, the ruling out came too late as the man suffered severe brain damage. The man sued the hospital for medical malpractice for failing to diagnose timely the herpes encephalitis. Plaintiff’s counsel claimed that the standard of care required physicians to start him on a broad spectrum antibiotic and antiviral medication before a diagnosis confirmation, yet during the Plaintiff’s treatment, he was not started on Acyclovir (the only amendable treatment for herpes encephalitis) until after the other diagnosis was ruled out. The Defendant admitted liability but argued that had the Acyclovir been started earlier, there was no guarantee the brain damage would not have occurred. The parties agreed to settle after mediation for $6,500,000.
  • October 2008, California: $2.3 Million Settlement: An infant was recently diagnosed with herpangina by her pediatrician after presenting with a fever. She returned two days later with persisting symptoms and was referred to Children’s Hospital Los Angeles for tests. The hospital physicians observed the infant but elected to not order tests after determining there were no neurological problems. The appropriate tests were not conducted for days. The child was ultimately diagnosed with herpes encephalitis. But, sadly, the child had already suffered irreversible brain damage. Her mother sued the hospital and its physicians for medical malpractice, claiming Defendants failed to properly diagnose her daughter’s condition. The parties agreed to settle the matter for a total of $2,300,000.
  • April 2008, Pennsylvania: $1,064,444 Verdict: A father of two with no history of mental disabilities suddenly began to experience hallucinations where he dreamed that his puppies were being murdered and contacted the police. He was taken to Nazareth Hospital where he was treated with an anti-anxiety tranquilizer and discharged. However, two days later he developed symptoms of hysteria, sweating, and paranoia and was admitted to a psychiatric department at Friend’s Hospital. There he developed fever and became incontinent. He was transferred to Frankford Hospital where a handful of physicians were consulted from the admitting internist to a neurologist. The man was hospitalized for two weeks with increased complications such as respiratory distress. It was not until three weeks into his admission that he was given a differential diagnosis of herpes encephalitis. He was treated with Acyclovir and began to make slight improvements. However, permanent brain damage had occurred, and he now requires 24-hour care. Plaintiff sued the admitting internist and consulting neurologist from Frankford Hospital for failing to order the appropriate diagnostic tests to detect the viral encephalitis. Plaintiff’s counsel claimed the man showed drastic changes in his mental status and had the Defendants ordered the proper tests, the brain damage would not have occurred. Both Defendants denied liability, claiming their actions were well within the standard of care. A Philadelphia jury rendered a $1,064,444 verdict for the Plaintiff.
  • June 2006, California: $6.5 Million Verdict: A five-month-old baby was taken to the emergency room of a local hospital after a week of fever and seizures in his left hand and arm. The emergency room physician performed a spinal tap that showed a central nervous system infection. The infant was diagnosed with viral meningitis and referred to his regular pediatrician where he was given the same diagnosis. However, less than two days later, the seizures returned. A neurologist was consulted who suspected herpes encephalitis and ordered an MRI, which confirmed the diagnosis. Unfortunately, treatment was too late, as the child had suffered severe brain damage. The brain damage resulted in the child being mentally retarded, unable to speak, and partial paralysis of his left side. The infant’s parents sued the emergency room doctor for failing to diagnose properly the child's condition. Plaintiffs claimed Defendant should have conducted a CT scan during the initial visit given the infant’s symptoms and in failing to do so resulted in a delay in diagnosis. Defendant argued the initial diagnosis was appropriate with the infant’s symptoms. A Santa Monica jury found for the Plaintiffs and rendered a $6,541,280 verdict.
Getting a Lawyer for Your and Your Child

Not every herpes encephalitis brain injury case is caused by medical negligence. But many are. If you suspect that your child or loved one has suffered a brain injury from herpes encephalitis and has suffered injury or death as the result of the failure of a doctor to treat the virus, call our birth injury malpractice lawyers at 800-553-8082 or get a free, no-obligation consultation online.

Related Information Medical Literature on Herpes and Birth Injuries
  • Cruz, A, et. al:  Herpes Simplex Virus Infection in Infants Undergoing Meningitis Evaluation, Pediatrics February 2018, 141(2). 
  • Sampath A, et. al: Infant deaths due to herpes simplex virus, congenital syphilis, and HIV in New York City. Pediatrics. 2016;137(4) (we have not done the research on this article but it appears to be trumped up for litigation, pushing the idea that there is more neonatal herpes than ever).
  • Whitley R, et al. A controlled trial comparing vidarabine with acyclovir in neonatal herpes simplex virus infection: Infectious Diseases Collaborative Antiviral Study Group. N Engl J Med. 1991; 324:444-449 (nearly 30 year-old study showed no differences between the two antibiotics)
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