Did the plaintiff in a missed sepsis malpractice claim present with a fever greater than 100.4°F, a heart rate greater than 90, a respiratory rate in excess of 20, and an elevated white blood cell count?
If so, says Ellen M. Voss, JD, a partner at Portland, OR-based Lewis Brisbois, “the plaintiff attorney can argue that all signs pointed to infection, which could have been cured simply by administering antibiotics.”
Plaintiff attorneys often focus on Systemic Inflammatory Response Syndrome (SIRS) criteria “to paint an alarming picture,” Voss says. Because sepsis can kill or incapacitate, plaintiff attorneys often argue the patient should not have been discharged until it was ruled out or treated.
“Infections are common enough that many jurors already understand the signs and symptoms of infection before hearing anything about the case,” Voss says, noting expert testimony is still necessary to prove a standard of care violation. “But it makes for a simpler theme that plaintiff attorneys can emphasize over and over again, beginning with opening statements, rather than having to explain intricate terms or anatomy or rely on experts to ‘dumb down’ confusing concepts.”
Signs Went Unidentified
Robert D. Kreisman, JD, a Chicago-based malpractice attorney, has seen several cases in which the initial symptoms of sepsis were overlooked at the time of the ED visit because such symptoms were confused with another condition such as stomach flu.
Kreisman says the most challenging aspect of such cases, on the plaintiff’s side, is to prove that the signs and symptoms of sepsis were present and were not identified by the EP.
“In some cases, a patient is admitted and treated for sepsis, only to be seen later by an infectious disease physician who evaluates the early reports that were taken upon entry to the ED,” Kreisman explains.
A recent case Kreisman handled involved a patient who did not present with an elevated heart rate, abnormal body temperature, rapid breathing, dizziness, or confusion. However, Kreisman says, “the patient presented with arguably visual signs of sepsis. This man had blotches on his skin, including open sores on his face, shoulders, and arms.”
The patient was admitted after his vitals were taken in the ED, and later died of septic shock. The defense argued that chicken pox — not a bacterial infection — was the cause of death.
“It was very difficult to prove negligence, because the ED physicians were diligent in taking the man’s vitals and then making the correct decision to admit him,” Kreisman says.
Thus, the plaintiff tried to prove medical negligence on the part of the infectious disease physician, who saw the patient very briefly on two separate occasions, missed the signs and symptoms of sepsis, and offered no antibiotics or even a treatment plan.
“The defense was successful in persuading the jury both the ED doctors and the infectious disease physician complied with the standard of care,” Kreisman says.
The defendant’s infectious disease expert convincingly testified that the patient suffered from a viral infection, not a bacterial one that could have been combated by the appropriate antibiotics.
“Without an autopsy, this case was even more difficult to prove negligence from the plaintiff’s side,” Kreisman says. “There was no clear evidence the patient arrived in the ED with a bacterial infection.”
Another malpractice claim alleges an EP misdiagnosed a septic child with influenza.
“As happens in most ED cases, documentation was not as adequate as we would have liked,” says Joan Cerniglia-Lowensen, JD, an attorney with Towson, MD-based Pessin Katz Law who is defending the EP. Here are some facts that became key issues during the litigation:
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A complete blood panel showed a normal white blood cell count, but an elevated absolute neutrophil count.
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The patient tested negative for influenza. The EP explained during his deposition that the diagnosis was based on the child’s clinical presentation and the family’s history of recent exposure to influenza. The EP also noted that a significant percentage of influenza tests are false negatives, which played a role in his decision-making.
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The plaintiff alleged the EP failed to take a complete history, and if the EP had done so, the EP would have been more likely to suspect a bacterial infection and not a virus such as influenza, because the child had a recent scrape injury.
“The EP charted only positive findings, not pertinent negative findings,” adds Cerniglia-Lowensen, which further complicated the defense.
“It is up to the defense attorney to demonstrate that at the time the EP was evaluating the patient, none of the tests or steps plaintiff’s attorney claims should have occurred were indicated, and why,” Voss says.
In one recent case Voss handled, a patient presented with complaints of headache, muscle aches, chills, sore throat, cough, vomiting, and diarrhea. The patient was febrile and tachycardic, with an increased respiratory rate.
“The patient was diagnosed with a viral illness and discharged home. The patient subsequently became septic and all four extremities were amputated,” says Voss, who defended the EP named in the subsequent lawsuit.
Allegations against the EP included the failure to order blood cultures and Gram stain, and the failure to rule out an infectious disease process before discharging the patient.
“The EP’s defense, which was successful, was that great care was taken to evaluate all potential causes of plaintiff’s symptoms. Since the plaintiff did not have an elevated white blood cell count, blood cultures were not indicated,” Voss says.
Causation a Key Factor
In ED claims involving missed sepsis, “you always need an infectious disease expert,” Cerniglia-Lowensen says. “They can testify as to whether the diagnosis was a reasonable one, and attempt to give us causation testimony.” However, the exact point at which antibiotics could have resolved the process is difficult to pinpoint.
“It’s hard for any expert to say, ‘on Saturday antibiotics could have reversed the process, but on Sunday it was too late,’” Cerniglia-Lowensen explains.
The defense expert can also argue the patient’s infection wasn’t truly a bacterial infection, but rather, the patient had a virus, and at a later point in time also developed a resulting opportunistic infection that wasn’t apparent at the time of the ED visit.
Cerniglia-Lowensen likes to see this documentation in the ED chart:
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the EP considered an infectious process;
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why an infectious process was dismissed;
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clear instructions as to when the patient should return to the ED.
“If there is any question in the provider’s mind, the patient should be referred to an infectious disease specialist, and this should be documented in the ED chart,” she stresses.
A recent malpractice case involved a patient who presented to the ED with complaints of pain, fever, and chills.
“The patient had undergone an in-office procedure three days prior, and the pain was in the location of the procedure,” Voss says, noting the patient was febrile, tachycardic, and presented with an elevated white blood cell count. “Fortunately, the EP ordered blood cultures before discharging the patient home.”
The blood cultures came back positive the following day and the patient was admitted to the hospital.
“Although the hospitalization was lengthy, the patient ultimately recovered,” Voss adds.
Allegations against the EP included the failure to administer antibiotics and failure to admit the patient, both of which would have resulted in earlier treatment of the infection.
The EP’s successful defense was based primarily on the fact that the delay between the time that the blood cultures came back positive and the time antibiotics were administered did not make a difference in the patient’s outcome.
“The fact that causation was in the EP’s favor, as well as the standard of care, made the case very difficult for the plaintiff to prove,” Voss says.
SOURCES
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Joan Cerniglia-Lowensen, JD, Pessin Katz Law, Towson, MD. Phone: (410) 339-6753. Fax: (410) 832-5626. Email: [email protected].
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Robert D. Kreisman, JD, Kreisman Law Offices, Chicago. Phone: (312) 346-0045. Fax: (866) 618-4198. Email: [email protected].
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Ellen M. Voss, JD, Partner, Lewis Brisbois, Portland, OR. Phone: (971) 712-2806. Fax: (971) 712-2801. Email: [email protected].
