Sepsis is not always diagnosable, or even present, at the time of an ED visit. All testing performed in the ED may provide negative results. Despite these facts, plaintiffs still may prevail in a missed sepsis lawsuit.

“In my experience, plaintiffs’ attorneys often focus on the small details of a patient’s vital signs,” says Scott Martin, JD, a partner at Husch Blackwell in Kansas City, MO.

If any assessment whatsoever is abnormal, even slightly, plaintiff attorneys generally claim that it indicated a preseptic or septic condition, which required further testing and treatment. In some missed sepsis cases, even the definition of fever became a key issue. “The simple question of ‘What is a fever?’ does not have a universally accepted numerical definition among patients or medical staff,” Martin explains.

If lab work is not ordered for a patient with an elevated temperature, Martin recommends charting the reasoning behind the decision. Sometimes, temperatures documented in the ED chart are hotly debated by both sides. “Some plaintiffs’ attorneys will literally spend hours focusing on differences of 0.1 or 0.2 degrees and whether antipyretics may have affected the readings,” Martin observes.

Typically, plaintiffs look for abnormal vital signs (fever, hypotension, tachycardia), abnormal lab results (white blood cell elevation), changes in mentation, and/or pallor, says Daniel LaLonde, MD, associate medical director of the ED at Ascension Providence Hospital in Southfield, MI. “The plaintiff attorney may also look for subtle exam findings such as a decubitus ulcer or descriptors like foul odor, oozing, swelling, redness, or warmth,” LaLonde observes. There are two helpful pieces of documentation. First, the EP should explain why he or she does not think it is sepsis, or why sepsis fell further down the list of differential diagnoses. “Sepsis can be a moving target,” LaLonde notes. “It’s very possible that the patient presents to the ED very early on its progression.”

Second, the EP should document that the patient and family were informed of warning signs of sepsis and when to return to the ED. “Your medical decision-making should also include a reassessment of the patient prior to discharge,” says LaLonde, adding that statements such as “patient has no other complaints” or “patient feeling better” can be helpful. “It would be very difficult for a patient who has fulminant sepsis to be, in fact, feeling improved without any other complaint.”

Barbara Brasher, RN, CLNC, a legal nurse consultant at Flemington, NJ-based Med League, sees these issues come up frequently in missed sepsis claims:

There is documentation that a patient was confused, lethargic, or tachycardic, yet the temperature was taken orally instead of rectally. “That gives the plaintiff the ability to argue that the initial vital signs were not done properly,” Brasher says.

Nurses failed to start antibiotics or an IV fluid bolus in a timely fashion.

EPs obtained a consult but did not follow the recommendations, such as an infectious disease specialist recommending repeating blood cultures.

Documented recommendations of various providers conflict. “A cardiologist wants the patient on fluid restrictions, but another physician orders a 1,500 fluid bolus,” Brasher says.

Delays occurred because nurses could not access an IV, failed to find an external jugular vein, or failed to start an intraosseous or central line in a timely fashion.

EPs claimed they were unaware of abnormal vital signs or the patient’s worsening condition. “As nurses, we can’t assume that they’re aware of a lactate that came back elevated just because we documented it,” Brasher notes. “It’s our responsibility to verbally let the emergency physician know.”

When reviewing ED charts, Brasher pays close attention to any documentation that nurses free-texted. “That’s important, because they’re saying the drop-downs are not giving a true impression of the patient’s situation,” she says. Sometimes, ED nurses document statements such as “Notified physician of low blood pressure.”

“Sometimes, that can be a red flag that something isn’t going right,” Brasher cautions.