Legal Review & Commentary

Failure to diagnose fatal sepsis leads to $1.835 million verdict in New York

By Jon T. Gatto, Esq., Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, FL

News: A middle-aged man was taken to the hospital complaining of pain in his lower back and abdomen. The man was given pain medication and a muscle relaxant and discharged. After his pain persisted, the man went to another hospital, where he was given anti-inflammatory medications and discharged. A few days later, the man was taken by ambulance back to the first hospital, where he suffered cardiac arrest and died. A post-mortem work-up determined that the man had been suffering from septic shock. The man's estate sued the first hospital, and a jury eventually returned a verdict of $1.835 million in favor of the plaintiff.

Background: A 52-year-old heavy equipment operator was rushed to the hospital by ambulance after suffering severe pain in the right side of his lower back, radiating to his right lower abdomen. At the hospital, the man informed the triage nurse that he had a medical history of kidney infection and muscle spasms, and he provided his history to a second nurse about 30 minutes later.

An ED physician met with the patient and learned that he had a past history of hypertension. The physician then performed a back examination and noted that the "straight leg-raising" test was positive and that the man's pain was radiating down his left leg. The physician diagnosed the patient as suffering from lumbago with sciatica, and he prescribed pain medication and a muscle relaxant.

Five hours after getting the medication, the man continued to complain of pain and was medicated again. He was eventually discharged with two prescriptions and told to see his regular physician in two days or return to the hospital if he felt worse.

Later that day, the man returned to the ED, still complaining of back pain. He waited for some time after signing in, but when he was called about two hours later, he did not answer.

Two days later, the man went to another hospital for treatment, complaining that his severe back pain was worsening and that his joints were swelling. Blood work was ordered and completed, which showed an elevated white blood cell count, an abnormal erythrocyte sedimentation rate, and bandemia. The man's kidney function tests also were found to be abnormal, and the blood urea nitrogen and creatinine tests were found to be elevated. The physicians at the second hospital diagnosed the patient with gout, prescribed two anti-inflammatory medications, and discharged him home.

Three days later, the man was taken back to the first hospital by ambulance. He suffered a cardiac arrest and died three hours later. Doctors performed a thorough work-up and determined that the man had been suffering from septic shock, brought on by urosepsis, which is sepsis resulting from the decomposition of extravasated urine.

The man was survived by a common-law wife and six children, three of whom were adults and three of whom were minors and still living at home. The man's estate sued the first hospital and the ED physicians working at the first hospital for negligence, alleging that the defendants failed to diagnose and treat the decedent's kidney problem and that this failure constituted malpractice. The ED physicians could not be identified, however, and were subsequently dismissed.

The plaintiff argued that the patient was suffering kidney pathology when he first presented to the first hospital and that the treating ED physician departed from good medical practice by failing to perform any laboratory testing. The plaintiff further contended that the physician failed to note the decedent's past medical history of kidney infection and that the man's condition could have been diagnosed if a simple urine analysis test had been performed. The plaintiff pointed out, in fact, that when the second hospital did blood work, the tests showed signs of an infectious or inflammatory process, and that if the original treating hospital had ordered blood work, the man's condition might have been identified.

The plaintiff relied on testimony from an expert in emergency medicine that given the man's history of kidney pathology and presentation of low back pain, the standard of care required that a urine analysis be performed. The expert opined that based upon the lab tests that were done at the second hospital two days after the man's initial visit to the first hospital — and based upon the consult reports and lab tests performed at the first hospital after the patient died — a urine analysis would have revealed abnormalities that, if treated, would have prevented the spread of the infection, as well as the man's pain and suffering and death.

The plaintiff sought damages for the decedent's five days of conscious pain and suffering as well as for the man's loss of earning and the estate's own loss of parental guidance and support.

The first hospital defended the lawsuit by arguing that the patient's history of kidney infection was too remote to be considered and that the ED physician's diagnosis of lumbago with sciatica was reasonable. The hospital also contended that there was no infection present when the man was seen on that first emergency admission. The first hospital also brought the second hospital into the case as a defendant, arguing that the second hospital was the one that departed from good practice by discharging the man while he was suffering an infection. Nevertheless, the second hospital was subsequently dismissed from the case based on the lack of expert testimony from the first hospital's experts as to there being any departures from the standard of care at the second hospital and as to there being any link between the treatment at the second hospital and the decedent's death.

After a trial, the jury found that the first hospital's staff departed from accepted standards of care and awarded the plaintiff $1.835 million in damages. Of the $750,000 awarded to the decedent's three minor children, the 6-year-old received $300,000, the 10-year-old received $250,000, and the 12-year-old received $200,000.

What this means to you: "The general public thinks of their local hospital's ED as the 'gold standard' in terms of urgent care," says Lynn Rosenblatt, CRRN, LHRN, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. "While the emergency room has long been the primary initial point of care destination for traumatic injuries, such is not always the case for medical emergencies," she adds. Many community-based hospitals actually operate trauma centers under contract with larger tertiary institutions such as teaching hospitals that oversee specially trained physicians and support staff. In such situations, the so-called trauma center actually is a subunit of the overall ED. Within the trauma center, the care is specific to traumatic injury and the urgent life-sustaining diagnostics and treatment such patients require.

Over the past two decades, hospitals have promoted the "other functions" that the ED can provide, such as urgent medical management for acute illness. Cardiac and Stroke Centers of Excellence designation is example of the application of the trauma approach to specific disease processes. In this manner, the ED is the point of entry for admission to the hospital for those patients who are in need of urgent care and cannot wait to see their primary care physician. In other cases, the ED is used as a substitute for a primary care visit, but in either case, the ED team of physicians and nurses needs to be just as astute as those who are responsible for trauma management.

The expectation would be that urgent medical cases get the same intensity of services that a trauma emergency would require. The ED staff would, by necessity, require broad knowledge of internal medicine specific to a wide variable of signs and symptoms. In that case, that premise seems to be nearly nonexistent. Not only did the team not fully investigate the patient's vague complaint of "severe back pain," but it failed to consider the possible ramifications of that complaint in terms of an alternate diagnosis.

When a patient goes to his or her regular primary care provider, there is a safety net in the knowledge that the provider has the patient's past history on file or as an alternative has the time to develop a history and to fully investigate the current complaint in that light. The office visit allows for diagnosis and treatment "over time." Such is not the case when the patient presents to the ED.

This patient's primary complaint was back pain with radiating abdominal pain, which could be symptomatic of many internal problems. Such things as kidney infections and renal failure, appendicitis, urinary tract infection, gall bladder disease, musculoskeletal injury, and many other similar variables are certainly possible. Even with the patient's reported history of kidney infection, nothing other than muscular injury was apparently considered.

The categorization of a patient's complaint is extremely important as to how the case is managed in the initial evaluation stage. Just as a patient presents to his physician's office with a stated complaint and the physician considers a wide range of diagnostic approaches to rule out a variety of possibilities, the same holds true in the ED setting. In this case, the nurses taking the patient's history should have been alerted to the possibility of something other than a musculoskeletal problem and reported and documented the various other possibilities based on a more extensive questioning of the patient or family.

The narrative does not provide insight into what types of testing was accomplished at the first hospital, but it appears that there was no baseline blood drawn to rule out possible other acute internal medical problems. The physician either did not know or chose to disregard the patient's past history of kidney infection. Instead, he focused on the patient's occupation as a laborer and the closely related possibility of back strain. The test he did use also is very subjective and does not go beyond the functional issues, which in this case had a totally different etiology.

The man was given several doses of pain medication, which was effective in controlling his pain, but had no effect on the problem itself, as only the pain was addressed by the physician — not the etiology. Without a doubt, this physician violated the standard of care as he did not fully investigate the full range of possibilities of the actual cause of the patient's symptoms. He considered the complaint of back pain as the chief issue as opposed to viewing it as a symptom of something else.

The second hospital actually had an advantage, as two days had passed and the patient's symptoms were now evolving into a more defined clinical picture. While this hospital did secure appropriate lab work, it failed to investigate the full range of possibilities that the abnormal values raised. Instead, the second physician diagnosed the patient with gout and treated based on that assumption.

It is unknown whether the patient had a previous history of gout or whether there were any symptoms that would have been conclusive for that diagnosis. Obviously, the kidney function tests and elevated lab values were overlooked in terms of alternate possibilities. In this respect, the second hospital was just as liable in breaching the standard of care as the first, and was incredibly lucky that the expert testimony did not focus on this point as a matter of contributory negligence.

Had the second hospital looked further at the lab values and proceeded with additional testing, one would hope that a diagnosis of systemic infection would have at least been raised and treated with appropriate antibiotics, which may have prevented this man's death. The failure of the expert for the first hospital to link the second was a major tactical error in the defense of the case. While the second hospital would not have absorbed the full burden for the claim, any finding against the second facility would have reduced the final judgment against the first.

This was a preventable death. Both facilities failed in their diagnosis of a relatively common ailment, which, if left untreated, can have dire consequences. As an urgent care provider, it is important to consider all possibilities, as there is neither the luxury of accurate past history or time to gradually rule out possible alternatives. Hospitals operating their EDs as urgent care response centers need to consider the educational scope of the staff, the informational accuracy provided by patients and families, and the need to assure that every possible consideration has not been overlooked.

Basic clinical decision making can go a long way to assist physicians in evaluating the most basic complaint of pain. If a lab panel had been initiated at the first facility, which would have most likely included blood work and a urinary specimen given the patient's history and complaint, the diagnosis would in all probability have been more accurate and the patient may have been spared. At the second hospital, the basic approach was undertaken, but it was not taken to the next level of inquiry — based on the results — to the next level of decision making.

Another problem was that the first hospital appeared greatly understaffed given the wait time when the patient returned that first day. Obviously, he became frustrated and left without additional evaluation, which could have possibly averted his death. Another indication of staffing inefficiency was the failure of the triage team to obtain a pertinent history and then convey that information to the physician. Clearly the patient informed two different nurses that he had a history of kidney infections in the past, but it is not clear as to how that information was documented and shared with the physician.

It would appear that any information the physician had was obtained directly from the patient at the time of the physical exam. The patient admitted to hypertension, but there was no indication that he told the physician about the past kidney infections. Had the physician consulted the triage team's documentation, if there was any, then he should have questioned the patient further.

The whole episode speaks to harried staff and an indifference to the demands of their individual jobs, as well as a failure to respond as a team. Without a doubt, each encounter lacked the detail and intensity that the ED setting commands. The second hospital was let off the hook, and the first paid a price for what is best described as incompetence.


  • Case No. 24002/03, Kings County (NY) Supreme Court.