Herpes Encephalitis Malpractice Birth Injury Claims

Our law firm handles medical malpractice lawsuits involving birth injuries and children with herpes encephalitis. Our lawyers handle herpes encephalitis lawsuits in all 50 states.  Call our herpes encephalitis lawyers today at 800-553-8082 if you believe you may have a viable lawsuit.

Herpes Encephalitis

Herpes encephalitis (“HE”) is a consequence of the 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 two types of encephalitis. 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 simplex virus encephalitis is the most common form of fatal encephalitis that occurs sporadically, with 2-4 cases per million people each year. That translates to approximately 0.005% to 0.03% of live births, or about 1 in 3,000 to 1 in 20,000 live births.  So it is rare.

Without treatment, there is a high mortality rate of 70%.  With treatment, it drops to 10-30% with treatment. Only 53% of infants with HSE developed normally. The earlier the treatment, the better the outcomes

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. Early diagnosis and prompt treatment are difficult because the viral infection presents similarly to other central nervous system disorders.

HE Is Preventable

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 the 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.

As we discuss more fully below, many HE malpractice claims are rooted in the failure of healthcare providers to order essential diagnostic tests like MRI scans, CT scans, or viral cultures. Without these tests, the condition can be misdiagnosed or dismissed as a less serious illness, delaying critical antiviral treatment. This delay can result in rapid disease progression, leading to irreversible brain damage or death within days.

Herpes Encephalitis Diagnosis Errors

What do doctors fail to do that they should? Often, it comes down to poor diagnostic work. Many of the herpes virus birth injury malpractice lawsuits our attorneys handle revolve around the claim that the diagnosis of herpes simplex encephalitis should have been suspected sooner, with treatment initiated immediately upon the first signs of illness. Early diagnosis is absolutely critical in these cases, as outcomes are often inversely related to the duration of untreated illness. In other words, the longer the delay, the worse the results for the patient.

A thorough diagnostic workup is often required but, unfortunately, not always conducted in a timely manner. This workup typically involves imaging studies such as an MRI or CAT scan of the brain to detect inflammation or other abnormalities that could indicate herpes encephalitis. In many cases, especially when the patient presents with mental deterioration or a fever, a lumbar puncture (spinal tap) should also be performed to analyze cerebrospinal fluid for signs of infection.

Too often, these essential diagnostic steps are either delayed or overlooked, leading to devastating consequences. Failure to act swiftly can result in severe neurological damage or even death, as the herpes virus can rapidly cause brain inflammation if left untreated. Prompt antiviral treatment is the key to preventing or minimizing these outcomes, making early diagnosis and aggressive intervention absolutely necessary.

In these types of malpractice cases, plaintiffs often argue that if the doctor had acted more swiftly or had been more thorough in their initial diagnostic efforts, the child’s long-term prognosis could have been significantly improved. These are complex cases where medical decisions and timing make all the difference, and sadly, delays or oversights can lead to life-altering injuries.

Need to Rule Our Herpes Encephalitis

One problem with diagnosing herpes encephalitis is that the most common symptoms of infection — seizures and fever — have multiple causes.  The malpractice cases are when 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 avoid a herpes encephalitis lawsuit because they still find a way to successfully treat the child.

Abnormal Mental Function

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.

Radiological Errors

Radiological errors often play a pivotal role in herpes encephalitis malpractice lawsuits. Again, and we cannot say this enough,  a missed diagnosis or a delayed interpretation of imaging can mean the difference between life and irreversible brain damage.

These radiological mistakes typically occur when a radiologist fails to recognize subtle abnormalities on a CT scan or MRI that indicate herpes encephalitis. Unfortunately, when this happens, a window of opportunity closes for the patient, making early intervention impossible.

For children and infants, the risk is even higher. When a neonate shows signs of a central nervous system infection and initial imaging reveals anything that could suggest herpes encephalitis, radiologists and doctors must respond immediately. Diagnostic delays here are often a result of radiologists not fully appreciating how subtle early signs can appear, and yet, it’s in these moments that further testing, like an MRI or EEG, must be promptly ordered to confirm the diagnosis.

Radiological errors are the first thing an encephalitis injury lawyer does when evaluating a potential birth injury lawsuits. The focus is  whether a reasonable radiologist would have interpreted the findings correctly, given the whole clinical context. Even a slight delay in diagnosis can allow the virus to cause severe, lifelong damage. This vulnerability is why herpes encephalitis malpractice lawsuits frequently point to radiological oversight as a primary factor for the progression of the disease.

Because the stakes are so insanely high, every abnormality that hints at herpes encephalitis must be taken seriously. A radiologist who fails to act on these signs not only jeopardizes the patient’s immediate well-being and exposes themselves to potential litigation. What our attorneys see reviewing these these cases is a failure to order an MRI or EEG promptly or misreading the CT scan.

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 settlement amount and jury payouts you see in successful herpes encephalitis case that settles or goes to verdict.

Why are there no verdicts or settlements in 2024?  Not many of these cases go to trial and herpes lawsuit settlements are almost always confidential. But there are also not that many of these cases.  There are no birth injury lawyers who have handled tons of these lawsuits.  They are, thankfully, relatively rare.

Keep in mind when looking at these settlement amounts and jury payouts that each case is very different, and it is impossible for any case or series of cases to predict the value of another. Still, these jury payouts and settlement amounts in herpes encephalitis lawsuits do put the settlement value of these claims in some context.

• 2023, California: $1,000,000 Settlement: The five-month-old plaintiff developed a viral syndrome, including fever and some lethargy. Although first thought to be suffering flu-like syndrome, plaintiff eventually developed focal seizures involving his right arm. He went to a local emergency room, where a spinal tap was consistent with a viral infection of the central nervous system. Despite the focal seizures, no work-up was done for a focal brain lesion, and plaintiff was transferred to another hospital for admission. He was treated for viral meningitis. Two days later, as the focal seizures continued, the diagnosis of herpes encephalitis was finally entertained. An MRI revealed a lesion consistent with herpes encephalitis. Lawsuit alleged negligent delay in diagnosis resulted in permanent brain damage.
• 2022, Illinois: $3,000,000 Settlement: A male infant suffered severe mental deficiency, cerebral palsy, a visual impairment, and a partial hearing loss when he was in the care of the male defendant physician and the codefendant male physician at the third-named hospital for herpes encephalitis shortly after his birth. The infant was adopted approximately one month after his birth with the physician’s assessment that he was a normal and healthy baby. The plaintiff’s adoptive parent hired an encephalitis malpractice lawyer contended that the defendants failed to diagnose the plaintiff’s condition in a timely manner, failed to observe his multiple skin lesions as signs of a herpes genitalis acquired disease, failed to timely treat him with appropriate therapy, failed to timely hospitalize him, failed to timely re-examine and re-evaluate him after the onset of sudden jerking episodes, and failed to provide the proper standard of care.
• 2021, New York: $157,727 Verdict: The plaintiff, an infant, reportedly contracted herpes encephalitis during birth and suffered injuries and damage to her brain, central nervous system, and skeletal and muscle growth when the doctors failed to provide her with proper pre-natal and peri-natal care by failing to timely diagnose. The jury awarded the plaintiff $70,000 for past pain and suffering and $70,000 for future pain and suffering. They also awarded the plaintiff $14,602 for future medical expenses, including medical care, medications, lab work, home equipment and supplies, therapies and home care, and $3,125 for future lost earnings and fringe benefits.
• 2020, New Hampshire: $1,000,000: The plaintiff, an infant, suffered a brain injury from being born with herpes encephalitis when he was delivered vaginally to a mother with an active herpes legion. The lawsuit alleged that the defendants (OB/GYN and nursing staff) were negligent in failing to check and identify an active herpes lesion at the time of admission for delivery. Further, had the lesion been identified, the child would have been born via cesarean section which would have prevented the transmission.
• 2018, Michigan: $6.25 Million Settlement: An expectant mother at 32 weeks visited the hospital. The hospital staff suspected placental abruption. They ordered an emergency C-section. The newborn suffered respiratory distress. He was transferred to the NICU. Two weeks later, the baby showed infection signs and symptoms. He breathed heavily, displayed unstable vital signs, and experienced temperature instability. The baby appeared lethargic, quiet, floppy, hypoxemic, and cyanotic. He received oxygen. An X-ray ruled out pneumonia. The baby received antibiotics. His condition failed to resolve. The baby experienced seizures. He was ultimately diagnosed with herpes encephalitis. The baby sustained severe brain damage. His mother alleged negligence against the hospital. She claimed its staff failed to timely suspect and diagnose herpes. This case settled for $6.25 million at mediation.
• 2016, Florida: $3.2 Million Settlement: A 20-something expectant mother at four weeks presented to a clinic for a prenatal appointment. Her Pap smear showed cellular changes that suggested bacterial vaginosis and herpes simplex virus. The clinic staff failed to report these results to the woman. A nurse marked them as normal. The woman showed no herpes signs for the rest of her pregnancy. She vaginally delivered her daughter. They were discharged after two days. Several weeks later, the baby girl suffered a fever, weakness, lethargy, and appetite loss. She presented to the ER. The girl’s spinal fluid test was positive for herpes simplex 2. She received a herpetic meningoencephalitis diagnosis. The girl took acyclovir. She sustained permanent brain damage. The girl experienced speech impairments, vision impairments, developmental delays, and walking difficulties. She required lifelong therapy and care. The girl’s mother hired a herpes encephalitis injury lawyer and filed a birth injury lawsuit that alleged negligence against the clinic. She claimed its staff failed to timely diagnose herpes and prevent mother-to-child transmission. This case settled for $3.2 million.
• 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 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.
• 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 brought a herpes encephalitis medical negligence lawsuit, suing Roxborough Memorial Hospital and the treating physicians for medical malpractice. The plaintiff’s herpes encephalitis lawyer 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 the hospital 100% negligent and ordered a $23,000,000 payout.
• 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 was 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 herpes encephalitis. The 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.
• 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 hired a herpes encephalitis birth injury lawyer and sued the hospital and its physicians for medical malpractice. The lawsuit claims the defendants failed to properly diagnose her daughter’s condition. The parties agreed to a settlement amount of $2,300,000 to resolve the lawsuit.
• 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 a 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. The plaintiff sued the admitting internist and consulting neurologist from Frankford Hospital for failing to order the appropriate diagnostic tests to detect viral encephalitis. The plaintiff’s birth injury lawyer 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 ordered a $1,064,444 compensation payout for the plaintiff.
• 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 a 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 her
  pes 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. The 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 You and Your Child

Our lawyers are based in Maryland but we are handling herpes encephalitis lawsuits throughout the country.

We have reviewed a lot of these claims. 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

• Example herpes wrongful death lawsuit
• Birth injury cases
• Malpractice claims against nurses in these types of cases
• Finding Experts: medical experts who can testify in these cases

Medical Literature on Herpes and Birth Injuries