A 30-year-old woman presented to an ED with fever, chills, and nausea shortly after giving birth. The patient was sent home with a diagnosis of urinary tract infection and an amoxicillin prescription. Twelve hours later, she was returned to the ED after losing consciousness.

“By this time, the infection had progressed such that all efforts to save her were unsuccessful,” says Elizabeth Fors, JD, an attorney at Minneapolis-based Robins Kaplan LLP. At the time of the first ED visit, blood tests showed an elevated white blood cell count and abnormally low platelet count. “Ignoring a red flag seems to be a common denominator in these tragic cases,” Fors laments.

The malpractice lawsuit alleged failure to diagnosis sepsis and failure to provide immediate and appropriate treatment, including IV antibiotics.1 The family was awarded $20.6 million. “At trial, the jury found that the ED provider’s negligence was a direct cause of the patient’s death,” Fors reports.

Several recent malpractice cases alleging missed sepsis involved triage in some way, according to Michelle Myers Glower, MSN, RN, NEA-BC, a Bradenton, FL-based medical-legal nursing consultant. Often, the triage nurse does not recognize early signs of sepsis or identifies early signs of sepsis, but the patient remains in the waiting room because the ED is full.

When reviewing ED charts in missed sepsis claims, Myers Glower is concerned with the steps the triage nurse took to get the patient out of the waiting room to the back of the ED. She looks for documentation on who the nurse spoke with, whether the ED nurses notified the charge nurse to discuss which patients could be moved to a lesser care setting, such as hallway beds, and whether the ED nurse asked the nursing supervisor to assist with the process. Many ED charts contain none of this information. This allows the plaintiff attorney to convincingly argue the ED nurse did nothing to intervene on the patient’s behalf.

“If there is no room at the inn, then what did you as a nurse do next to assist in getting the patient back?” Myers Glower asks. Specifics on who the ED nurse spoke to, and the response, become very important to the defense. The best legal protection, says Myers Glower, is to “document what you had to do to make this happen.”

Published sepsis recommendations often become the central focus of malpractice litigation alleging missed or delayed diagnosis. “The guidelines lend additional support to our retained medical expert’s opinion,” Fors says. These include the Severe Sepsis and Septic Shock Early Management Bundle that CMS adopted in 2015 to improve hospitals’ identification and treatment of sepsis. “These initiatives give ED providers little excuse for failing to recognize and treat sepsis,” Fors says.

Only 50% of patients received appropriate care for severe sepsis or septic shock in accordance with the CMS’ sepsis treatment guidelines in 2017, according to Hospital Compare data. (https://bit.ly/2P685FV) Negligence claims are stronger if the plaintiff can show that ED providers did not follow recommendations to the letter, including the revised “hour-1 bundle,” which focuses on beginning resuscitation and management immediately.2

“While a jury may not like the personal demeanor of an expert, they routinely assess high credibility to sepsis guidelines,” says Pamela L. Popp, JD, executive vice president and chief risk officer for Western Litigation. EPs may have had good reasons for going down a different path, but failure to follow the guidelines makes care appear negligent. “This will always sway the jury unless the provider can show why their alternative theory made sense at the time,” Popp says.

Plaintiffs in missed sepsis claims tend to present with generic complaints of pain, confusion, fever, or chills. Some are misdiagnosed with flu or panic attacks. “The key is taking the patient’s complaints seriously and starting the sepsis bundle if the symptoms meet the criteria,” Popp offers.

It is common for ED staff to disregard electronic medical record (EMR) alerts. However, if someone misses sepsis, the disregarded alerts can be used to prove negligence. “If [an EP or nurse] are going to disagree with a sepsis alert, they need to do more than just click it closed,” Popp advises. ED providers need to show that they considered sepsis and that they chose to take other actions for good reasons.

Some plaintiff attorneys introduce the CDC’s visually friendly patient education materials on sepsis as evidence. “If presented to a jury, this makes the diagnosis of sepsis appear to be very easy,” Popp explains. ED providers might be tempted to explain that there is a need to limit the use of antibiotics, but this is a tough argument to make.

“To a jury, the giving of antibiotics — and they do not differentiate between oral and IV — is very easy,” Popp adds.

The three most common allegations in missed sepsis claims are that antibiotics were not started promptly, lactate values were not determined, and the patient’s complaints were somehow disregarded.

“Defending sepsis misdiagnosis cases is becoming much more challenging,” Popp laments. The best defense? Strong documentation that the EP considered sepsis and ruled it out due to specific circumstances or symptoms. “For example, if a patient appears septic but lab results speak more to an underlying or chronic condition, this is what the physician should document,” Popp explains.

An explanation of the EP’s thought process, even if it was incorrect, gives the defense something to work with.

“The jury just needs to believe that the provider took into consideration all of the information available to them in making their diagnosis and treatment plan,” Popp says.


  1. Edward Bermingham IV v. Patricia Eid NP et al., Case number 27-CV-16-1269 (Hennepin County District Court, Fourth Judicial District of Minnesota, 2017).
  2. Levy MM, Evans LE, Rhodes A. The Surviving Sepsis Campaign bundle: 2018 Update. Crit Care Med 2018;46:997-1000.