By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services 

California Hospital Medical Center

Los Angeles

Morgan Lynch, 2018 JD Candidate

Pepperdine University School of Law

Malibu, CA

News: A wrongful death case involving a new mother resulted in Minnesota’s largest wrongful death verdict. The patient suffered a severe vaginal tear during childbirth. After the patient was discharged, she returned to the hospital and underwent several tests, which revealed sepsis related to the childbirth. Notwithstanding these test results, the treating nurse practitioner diagnosed the patient with a urinary tract infection and discharged her. That same day, the patient’s symptoms worsened until she passed out and returned to the ED of the same hospital.

Efforts to stabilize the patient were unsuccessful, and she died eight days after the birth. The patient’s husband filed suit against the nurse practitioner and others, claiming that their negligence in misdiagnosing the patient caused her wrongful death. The case eventually proceeded to trial and, after a lengthy deliberation, the eight-person jury returned a verdict in favor of the estate for more than $20 million.

Background: In mid-August 2013, a 30-year-old pregnant physician assistant presented to a hospital in Minnesota with her husband — also a physician assistant — to give birth to her first child. She suffered a severe vaginal tear, but the birth was otherwise uneventful, and she was eventually discharged. The patient soon returned to the hospital with symptoms of chills, fever, worsening vaginal pain, and nausea. The patient was seen by a nurse practitioner, who worked as an agent of a consulting company contracted by the hospital.

The nurse practitioner tested the patient’s urine, which returned a bacteria-free result. However, the nurse practitioner also ordered lab tests, including a complete blood count test, which showed that the patient had an elevated white blood cell count and an abnormally low platelet count of 50,000 — less than one-third the minimum normal count. Further, the patient exhibited a left shift along with bandemia, or an increase in immature white blood cells. Despite the test results indicating sepsis, the nurse practitioner diagnosed the patient with a urinary tract infection and made the decision to discharge the patient with amoxicillin and Tylenol.

Over the course of the same day, the patient’s sepsis worsened until she eventually lost consciousness. The patient was then admitted to the ED of the same hospital, where, despite the best efforts of physicians, she died from her undiagnosed and untreated infection. The patient’s husband sued on behalf of the patient against the nurse practitioner, her employing consulting company, and the hospital, alleging the nurse practitioner’s negligence in failing to diagnose and treat the patient’s sepsis caused her wrongful death. The other defendants were sued on a vicarious liability basis.

The patient’s estate argued that proper and full antibiotic treatment at the time when she originally presented to the hospital ED likely would have resulted in her full recovery. It further claimed that the surgeon who performed the patient’s hysterectomy — conducted immediately prior to her death in an attempt to save her life — denied any visual evidence of flesh-eating bacteria.

Rather than contesting the nurse practitioner’s negligence, counsel for the defendants argued that the patient’s fast-moving infection likely would have caused the patient’s death even with a more timely, full antibiotic treatment. Additionally, the defendants’ expert contended that the patient’s infection likely included flesh-eating bacteria.

After deliberating for six hours, seven of the eight jurors found that the nurse practitioner’s negligence was a direct cause of the patient’s death. The plaintiff estate was awarded $20.6 million, almost 75% of which was awarded for future loss of counsel, guidance, aid, comfort, assistance, companionship, and protection.

What this means to you: A salient lesson to be learned from this case is the importance of critically evaluating test results. At least in the context of this case, a critical evaluation demanded cross-referencing the results of tests with a patient’s symptoms as established by self-reporting and physician-directed questioning to develop a running list of potential diagnoses. Further, where ambiguities arise from test results and when tests and symptoms are inconsistent, additional testing and questioning may be warranted. Successful medical professionals also will consider the patient’s medical history when developing a diagnosis. These data will allow the medical professional to refine his or her list of diagnosis hypotheses and arrive at a final diagnosis.

It also is important that medical practitioners bear in mind that absolute certainty in diagnosis is impossible, and the goal is to reduce uncertainty to an acceptable range. Many medical malpractice claims arise out of a failure to diagnose or misdiagnosis. Hospitals would do well to ensure proper diagnosis procedures are instituted and followed loyally by practitioners. The focus should lay on ensuring sufficient time is spent on arriving at a diagnosis, and on delaying treatment until the practitioner is reasonably certain of his or her diagnosis. Potential consideration when creating such procedures include the level of certainty with respect to the diagnosis, the potential harm of delaying treatment to gather further information, and the potential harms or benefits of pursuing a particular treatment option.

Sepsis often is viewed by physicians as a three-stage process, including sepsis, severe sepsis, and septic shock. As with many other diseases, early diagnosis and treatment can render a life-threatening disease easily treatable. However, detecting sepsis may be difficult since its symptoms often can be caused by other disorders as well. Physicians should test the patient’s blood for infection, clotting issues, abnormal liver or kidney function, impaired availability to oxygen, and electrolyte imbalances. Based on the results of those tests and the patient’s symptoms, physicians may decide to test the patient’s urine or wound secretions for infection. If a physician is unable to determine the location of the sepsis, imaging scans such as X-rays, CT, MRIs, and ultrasound may be used. Finally, the patient’s medical history may offer further clues to illuminate the infection site; for example, the patient’s vaginal tear in this case. The treatment of sepsis depends on the degree of severity and location, and may include inpatient care, antipyretics, antibiotics, fluid and oxygen replacement, vasopressors, surgery, and dialysis.

A test used in this case that was helpful in determining the proper diagnosis was a complete blood count test. These generally are used to review a patient’s health, but also can be particularly helpful in diagnosing sepsis when coupled with other potential detection methods. The test also may be useful in evaluating the efficacy of a particular treatment and to validate the diagnosis given by a medical professional. Tests such as the complete blood count are widely used and are one of many available detection methods where sepsis is a possibility.

All of the above information is essential if accurately presented to the practitioner, and if the practitioner double-checks to assure that the tests and reports received are for the correct patient. From the fact pattern, one wonders whether this occurred here. One possible explanation of events is that specimens were mislabeled in the ED and the nurse practitioner based the diagnoses on lab tests belonging to another patient. Unfortunately, this is not a rare occurrence. The test results for the patient showed obvious sepsis and no evidence of a urinary tract infection. There is no plausible reason for a highly trained nurse practitioner whose educational background goes well beyond what is required for a registered nurse to make such an error in judgment unless he or she was viewing results from a different patient. When evaluating results of any test, if the symptoms don’t match the results, one must always consider and validate the patient source of the test and repeat tests if any doubt exists.


Decided on Aug. 28, 2017, in the District Court of Minnesota, Fourth Judicial District, Hennepin County; case No. 27-CV-2016-001269.