A patient presented with symptoms indicative of sepsis, and the emergency physician (EP) failed to recognize it or appropriately respond, directly leading to unnecessary morbidity or mortality.
This is the most common allegation in missed sepsis claims against EPs, says William M. McDonnell, MD, JD, clinical service chief of pediatric emergency medicine and medical director of the emergency department (ED) at Children’s Hospital & Medical Center in Omaha, NE.
“As with all medical malpractice cases, it is far easier for EPs to defend themselves if their medical decision-making is recorded in the chart,” McDonnell says.
Simple check boxes, orders, and diagnoses do not provide a legally protective explanation of why a particular course of diagnostic studies and/or treatment was, or was not, pursued.
“When the record does not provide an explanation, a plaintiff’s attorney is always ready to provide an explanation,” McDonnell notes.
Formalized Approach
Ultimately, a malpractice claim premised on missed sepsis depends on the plaintiff establishing that the defendant EP failed to do what a “reasonable” provider would have done in similar circumstances.
“Therefore, it is much easier for EPs to defend themselves if they can point to a formalized approach that was put into place to identify and treat sepsis, and if they can show that they followed this previously established process,” McDonnell says.
Juries understand that occasionally any disease process might go unrecognized, despite the EP’s good faith efforts.
“But, they want to know that the EP and the institution had a plan for identifying and treating sepsis, that they followed their own plan, and that they made reasonable efforts in good faith,” McDonnell says.
McDonnell says that a defense attorney would be pleased to see an explanation in the ED chart describing how the EP considered sepsis, followed the institutional approach to sepsis in accordance with the established protocol, and chose the particular action taken based on the findings and on the guidance in the sepsis pathway.
A missed sepsis claim is more difficult to defend if the ED chart includes abnormal vital signs and abnormal physical exam signs suggestive of severe sepsis, and a complete absence of any discussion about a sepsis protocol or consideration of sepsis.
“It then becomes quite easy to demonstrate that the EP ‘missed it completely,’” McDonnell says.
SIRS Criteria Is Issue
Scott O’Halloran, JD, a medical malpractice attorney in the Tacoma, WA, office of Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, has seen multiple claims alleging that an EP failed to admit a patient who met the Systemic Inflammatory Response Syndrome (SIRS) criteria, “but it’s usually a very strict interpretation and they didn’t strictly meet it.”
Another common scenario is a patient with elevated white blood cell count or elevated band count with one other indication of infection, such as fever, chills, nausea, vomiting, diarrhea, or tachycardia, where the EP failed to admit, order cultures, or prescribe prophylactic antibiotics.
“There is a lot of good research and support for not giving prophylactic antibiotics, which is what the lawsuits usually allege they should have done,” O’Halloran says.
Documentation showing that the EP considered whether a patient met SIRS criteria is helpful.
“If white blood cell or bands are elevated, documentation of why this is not indicative of an infection for this particular patient can be helpful,” O’Halloran says.
If a patient meets SIRS criteria, the EP should clearly document medical decision-making, advises Larry D. Weiss, MD, JD, FAAEM, MAAEM, clinical professor of emergency medicine at the University of Maryland School of Medicine, Baltimore.
“State why you believe the patient has, or does not have, bacteremia or sepsis,” Weiss says, adding that compliance with the new Centers for Medicare & Medicaid Services (CMS) Severe Sepsis/Septic Shock Early Management Bundle (SEP-1) will show that the EP acted within the standard of care.
“If the patient possibly has bacteremia or sepsis, document your compliance with the SEP-1 guidelines,” says Weiss. The guidelines recommend:
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obtaining a blood culture, serum lactate level, and administration of antibiotics within three hours of arrival in the ED;
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repeating the lactate level within six hours;
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administering a fluid bolus of 30 mL/kg of isotonic fluid if the patient presents in a state of septic shock.
Some patients with simple upper respiratory infections fulfill some of the SIRS criteria.
“If this is the case, then the EP should document the clinical impression of an upper respiratory infection, obviating the need for institution of the SEP-1 guidelines,” Weiss says.
SOURCES
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William M. McDonnell, MD, JD, Clinical Service Chief, Pediatric Emergency Medicine/Medical Director, Emergency Department, Children’s Hospital & Medical Center, Omaha, NE. Phone: (402) 955-5140. E-mail: [email protected].
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Scott O’Halloran, JD, Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, Tacoma, WA. Phone: (253) 328-7812. E-mail: [email protected].
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Larry D. Weiss, MD, JD, FAAEM, MAAEM, Clinical Professor of Emergency Medicine, University of Maryland School of Medicine, Baltimore. Phone: (410) 328-8025. Fax: (410) 328-8028. E-mail: [email protected].
