ED Malpractice Claims Alleging Missed Sepsis Include These Allegations

By Stacey Kusterbeck

Plaintiffs’ attorneys are increasingly scrutinizing ED care for failure to promptly identify and treat sepsis, reports Gary W. Tamkin, MD, FACEP, vice president of provider development at US Acute Care Solutions, an ED and hospitalist staffing company. “Patients who are discharged with history or physical exam findings consistent with sepsis that is not aggressively evaluated in the emergency department are low-hanging fruit for malpractice attorneys,” says Tamkin.

Some common fact patterns are emerging in ED malpractice claims involving sepsis. The presence of tachycardia at discharge is one recurring issue. “There’s a strong correlation with this abnormal vital sign at discharge and the later diagnosis and return to the emergency department of the septic patient,” explains Tamkin. One way to mitigate this risk is by implementing ED protocols that create “hard stops” for discharge of any patient with tachycardia. Nursing protocols and electronic medical record (EMR) screens alert the emergency physician (EP) to allow for immediate re-evaluation of the patient for possible unidentified sepsis. For some patients, it results in a change of treatment plan and disposition. For others, ED providers take the opportunity to carefully document why discharge still is appropriate. For those rare cases, Tamkin suggests that ED providers include these items:

• a discussion of the differential diagnosis;

• why the discharge is thought to be medically appropriate;

• detailed instructions provided to the patient regarding follow-up and the circumstances in which the patient should return immediately to the ED.

Sepsis “is becoming more elusive and difficult to diagnose as time passes,” according to Kenneth Alan Totz, DO, JD, FACEP, a Houston-based attorney and practicing EP. One reason is that the aging patient population is adding another layer of complexity to ED workups. Some patients are taking immunomodulating medications for a variety of ailments, including vitiligo and Crohn’s disease. Others have implantables (pacemakers, artificial joints, or automatic implantable cardioverter defibrillators) that can harbor occult infections. “Invasive pain management strategies are becoming popular, such as epidural steroid injections and facet injections. These can create a portal of entry for bacteria to access the central nervous system, for a whole other subset of infectious issues,” Totz explains.

Totz recommends that ED providers take these issues into account during the evaluation of patients. “A failure to appreciate and/or articulate a consideration of occult sepsis in the differential diagnosis of those patients taking monoclonal antibodies can leave you in hot water,” says Totz.

Documentation of what medications ED patients are taking is important to include in the chart — but the same is true for medications the patient is not taking.

ED providers routinely identify pertinent negatives for head injury patients, such as that patients are not on blood thinners. Similarly, says Totz, it is important to specify whether the patient is taking immunotherapeutic medications that can alter the immune response or affect lab results (such as white blood cell count).

When it comes to ED malpractice claims involving sepsis, ED providers commonly are sued for delayed diagnosis, failure to communicate key clinical findings to receiving providers in transfers of care, or failure to initiate antibiotic treatment in a patient showing relevant signs of infection, according to Renée Bernard, JD, vice president of patient safety at The Mutual Risk Retention Group in Walnut Creek, CA. Bernard has reviewed malpractice claims involving patients who presented to the ED with pain from kidney stones. A common fact pattern: The ED provider provides standard pain medications along with discharge instructions for when to return to the ED. Post-discharge, the patient quickly progresses to sepsis in less than 24 hours, resulting in severe disability or death. “It’s important for ED providers to evaluate emergent conditions first and confirm that the urinalysis and clinical tests are not showing evidence of infection,” says Bernard. The plaintiff’s expert will be looking for these items in the ED chart, says Bernard:

For admitted patients: Communication from the ED to the inpatient team about the severity of symptoms;

For discharged patients: Documentation of medical decision-making that rules out emergent conditions and evidences a reasonable diagnostic pathway and reasonable diagnosis. Also important: Evidence of clear communication to patients about the discharge plan, and evidence of ED providers’ efforts to arrange follow-up care within a reasonable time frame.

EPs face legal risks when sepsis is not considered as a possible diagnosis, patients are not adequately reassessed before discharge, or patients are not informed of the potential for sepsis as a diagnosis, says Chadd K. Kraus, DO, DrPH, FACEP, vice chair of research and a practicing EP in the Department of Emergency and Hospital Medicine at Lehigh Valley Health Network. The diagnosis of sepsis is always going to be challenging in some cases, since patients can present initially with very subtle signs and symptoms (such as fatigue or general malaise).“The most important factor to help minimize delay in sepsis diagnosis is to consider sepsis as a possible cause of a patient’s symptoms,” underscores Kraus.

Patients with multiple visits to an outpatient setting or the ED with signs and symptoms that suggest sepsis should be evaluated for possible sepsis, says Kraus. Timely initiation of appropriate diagnostic testing and treatment is fundamental to avoiding missed or delayed recognition of sepsis or defending against these allegations in a malpractice claim. “Documenting a clinical reassessment, as well as vital signs that are not suggestive of sepsis, are important to good clinical care and to minimizing medico-legal risks,” offers Kraus.