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Alex Horvath / The Californian Melissa Kyles and her husband took their newborn to the emergency room in Cecember after he felt a little warm and registered a temperature of 100.3. Once there, the fever was gone but the doctor recommended a spinal tap. The couple refused and wanted to talk to their pediatrician first. Pictured are Melissa Kyles and her children Rebecah, 2, Matthew, 3 months and Abigail, 4. (cq)

Melissa and Josh Kyles just didn't think the doctor was right.

Yes, their 2-day-old son, Matthew, had a 100-degree fever earlier in the day. But he needed a spinal tap? Intravenous antibiotics?

So they refused treatment at Mercy Southwest Hospital's urgent care center and planned to call their trusted pediatrician the next day.

What happened next floored them: a visit from Child Protective Services.

Matthew turned out to be fine and the Kyles were cleared. But their experience raised a good question: Should the doctor have called CPS?

Mercy officials said they couldn't discuss Matthew's case for privacy reasons. But two local physicians weighed in on what the doctor may have been thinking and whether he made the right call.


The Kyles took Matthew to urgent care last December because he felt warm.

The fever was gone by time the couple arrived at Mercy Southwest but an emergency room doctor there still recommended tests for meningitis.

That seemed drastic to the couple, especially since he hadn't examined or even touched their son. They wanted to consult with their own pediatrician first.

But the doctor insisted hospital protocol was to do a spinal tap to test for meningitis and start intravenous antibiotics on a newborn with fever, the Kyles said.

When the Kyles refused treatment, a nurse said they'd have to sign a form acknowledging that. And, she said, the doctor would be contacting CPS.

CPS called the Kyles later that day and visited their home later that week. The agency later mailed them a letter saying "general neglect has been determined to be unfounded."

But the couple still felt bullied by the doctor, who seemed "more concerned about his ego than the welfare of his patients," Melissa said.

"Aside from the death of one of my children, the worst possible thing that could happen to me would be to have them taken away," the mother of three said recently. "To be put in that position because we were trying to protect our baby is absolutely ludicrous."


After hearing the Kyles' story, local pediatrician Javier Bustamante and Dr. Paul Walsh, a pediatric emergency room doctor at Kern Medical Center, said they understood the doctor's medical recommendation but weren't sure contacting CPS was appropriate.

"It sounds like a case where the technical side was spot on, but the other side of things" -- calling CPS -- "that's where the questions arise," Walsh said.

Both physicians agreed the doctor was right to recommend tests for meningitis. In general, babies have a 10 percent chance of developing a severe bacterial infection that can lead to meningitis and potentially death within the first two months of life. And the risk in the first month of a baby's life in Kern County is around 20 percent, Walsh said.

Temperature instability is a warning sign of infection and doctors must act quickly and aggressively or a child could die within 24 hours, both physicians said. Doctors take samples of blood, urine and spinal fluid to test for infection.

Bustamante said underestimating the signs of infection in a newborn is one of the top malpractice claims made against pediatricians.

"The aggressiveness here was appropriate," Bustamante said.


Fortunately, Matthew was fine even though his parents didn't accede to the treatment. But suppose he'd later died?

"Then you know the doctor would have been held up for criticism for not doing something more," Walsh said. "People would have said, 'You knew this child had a 10 to 20 percent chance of having an infection.'"

"Is CPS the way to go in that situation? I don't know. But there are very limited resources for follow-up" on cases like this, he said. "We used to have a clerk at KMC who would follow up with all these babies. But in urgent care, you don't have that safety net."

Brian Parnell, a local program director for Child Protective Services, said doctors do contact CPS in such cases.

"A doctor would be required to report that to us because there are instances where families neglect their child's medical care," he said. "So when a parent says, 'Well, I'm going to go check with my doctor,' in some instances that's true, but the doctor has no way to know if that's true.

"Hospitals don't have personnel they can send out to the home," he said. "We do."

Ultimately, a doctor has to determine if the child's condition warrants CPS follow-up, Parnell said. For example, a doctor is unlikely to report parents who take their kid to urgent care for symptoms of a cold but leave before getting treatment because they face a four-hour wait.

In a statement, Mercy said: "Whether or not to contact an authority is a decision a provider must make based on their professional judgment -- their ability to process and evaluate the information they've been given knowing the criteria for such a report. It's not a matter of personal opinion or a reflection of their personal feelings about a particular patient.

"Providers are not determining guilt. They are determining that enough indicators exist to warrant the appropriate authority to investigate further. There will be instances when, upon further investigation, it is determined that the patient is not in immediate danger."


Bustamante questioned whether the doctor's bedside manners could have been the problem. Did he properly explain the seriousness of the situation or take time to address the parents' concerns?

Walsh also said the doctor should have made an effort to examine the baby. Even though there's very little to exam in a 2-day-old, "at least the parents will understand you're looking at the kid."

The doctor could have done other things differently, too, Bustamante said.

He could have called the family's pediatrician for help convincing the parents not to leave. Bustamante said he often gets those calls from emergency room doctors.

Or the doctor could have called the pediatrician the next day to make sure the child was seen.

On the other hand, did the doctor have time to do that? In an ER, he could have been dealing with -- all at once -- victims of a car accident, a patient having a heart attack and, now, two parents who didn't want to follow his advice, Bustamante said.

"You have to lose that sympathy sometimes when you work in that environment," he said.


The Kyles are also bothered that a permanent record of the CPS report will go into a statewide database.

But it will stay confidential unless there's a court subpoena -- unlike if the abuse report had been substantiated or found inconclusive.

The Kyles filed a complaint with Mercy, which answered that a committee will review the doctor's actions.

"We don't want (the doctor) to lose his license," Melissa said. "We just want him to change."

The couple also recently received a phone message from the doctor saying he was "sorry CPS came out" and it must have been "a hardship and such an inconvenience."

"I can imagine," he said. "I have children."


According to its legal manual:

* " 'General neglect' means the negligent failure of a person having the care of custody of a child to provide adequate food, clothing, shelter, medical care or supervision where no physical injury to the child has occurred."

* "The law also says that 'an informed and appropriate medical decision made by (the) parent or guardian after consultation with a physician or physicians who have examined the child does not constitute neglect.'

"This provision leaves open the question as to what constitutes an 'informed and appropriate medical decision,' but it appears to require reporting in situations in which the physician or another member of the health care team believes that a decision made by a child's parent or guardian after receiving the relevant information is not appropriate, in the sense that it is not consistent with the child's best interests."