Sepsis Report Could Help ED Malpractice Defense
Of the many different guidelines on early sepsis care in the ED, some specific recommendations remain controversial. A recently released report addresses many of these issues.1
“While our effort was organized under the umbrella of emergency medicine, we also had other stakeholders involved. That was done for a specific reason,” says Donald M. Yealy, MD, FACEP, a member of the sepsis task force convened by the American College of Emergency Physicians.
This task force included key, diverse stakeholders involved in the early care of patients with sepsis and septic shock.
“Many other guidelines and metrics espoused by other groups and the government had little or no multidisciplinary input,” Yealy notes.
Specific recommended practices are not always appropriate for every ED patient. “These practices, where evidence and clinical insight differed from the recommendation or the mandate, created challenges in adhering to the guidelines, and may not have helped each patient,” says Yealy, chair of emergency medicine at the University of Pittsburgh.
The task force set out to identify areas of concern in existing sepsis recommendations or mandates, and examine current data and expert insights. “It’s not that we have concerns that any one recommendation is absolutely wrong. But [sepsis] bundles may have facets that do not serve people as well as initially intended,” Yealy explains.
Early identification and intervention for sepsis in the ED is important. That is not in dispute. “Not every person with sepsis or septic shock has the same constellation of maladaptive effects,” Yealy notes. “Not every singular recommendation fits everyone well.”
There is no single time frame for antibiotics that is always applicable to every sepsis patient in the ED. Some patients really need immediate antibiotics, but others are better served by a more detailed evaluation first. The same is true for a specific volume of fluids to treat or prevent sepsis complications. Certain guidelines require set amounts of fluid for virtually all patients, but it varies depending on the patient.
“The ED provides initial care to roughly 75% to 80% of the people eventually diagnosed with sepsis or septic shock. EPs, ED nurses, and other people in the ED are central to the outcomes of people,” Yealy says.
The task force report acknowledges some of the differences that exist in individuals or groups of patients. The authors recognize the ED is not the final step in sepsis care. “EPs truly have a vested interest in improving outcomes, just like our intensivist, infectious disease, and pulmonology colleagues,” Yealy notes.
Yealy and colleagues confirmed some recommendations lack solid evidence. “We help clarify some of the evidence gaps that exist,” he says.
For example, the amount of IV fluid needed, the timing of the fluid, and the use of other medications to support blood pressure and organ perfusion all are under investigation to determine the best approaches. “But right now, one best approach doesn’t exist, based on evidence,” Yealy says. The guidelines offer a more flexible range of responses for EPs to consider if sepsis is on the differential diagnosis list. “It’s not possible to name a singular standard of care,” Yealy explains.
Many ED providers worry that failure to follow any one of the existing sepsis guidelines will expand legal exposure. The task force report should alleviate this concern while improving care of sepsis in the ED. “If you care for somebody and chose a careful approach that fell outside of one of the guidelines, our paper should help you, not hurt you,” Yealy offers.
In missed sepsis malpractice cases, plaintiff attorneys frequently argue the standard of care was not met because a particular recommendation was not followed. The task force report could be used to refute this kind of argument, because it notes the challenges with many recommendations and mandates.
In the sickest patients (i.e., those with obvious septic shock, with low blood pressure, and new organ failure), early antibiotics and resuscitation efforts are key. In patients with less obvious symptoms, the timing and amount of fluid might be different. The report offers some reasonable options for ED sepsis care. “If anything, this lessens the risk while improving the care,” Yealy observes.
The following are some common fact patterns in missed sepsis ED malpractice claims:
• The patient presents with some indicators of sepsis (fever, chills, or nausea), but is sent home without appropriate treatment. “The patient returns to the ED when symptoms worsen, at which point the infection has progressed past a point of recovery,” says Annie E. Howard, JD, an attorney in the Johnson City office of Hancock, Daniel & Johnson.
Too often, ED charts are silent on what the EP was thinking. “Checkboxes and prepopulated screening tools are no replacement for a narrative explanation,” Howard says. All that is documented is the patient presented with symptoms that were concerning for sepsis. Nevertheless, for some reason, the patient was discharged. “When an alternative explanation is not documented, to show that the provider appreciated the presentation, but reasonably believed it to be from an alternative cause, it benefits the plaintiff,” Howard explains.
• The patient was discharged home from the ED — without learning a blood culture returned positive. At the time of the ED visit, the patient’s symptoms were not acute enough to warrant admission or IV antibiotics. Hours after discharge, a blood culture indicates treatment is imminently necessary.
Sometimes, the patient’s phone number is incorrect or voicemail is full. “A simple phone call is often not enough to reach the patient,” Howard cautions. “There must be an alternative method to contact the patient and document it was completed.”
• The patient recorded abnormal vital signs suggestive of potential sepsis, but no screening tool was used. “If there is no other documentation that sepsis was considered, a missed sepsis claim is much more difficult to defend,” Howard says.
- Yealy DM, Mohr NM, Shapiro NI, et al. Early care of adults with suspected sepsis in the emergency department and out-of-hospital environment: A consensus-based task force report. Ann Emerg Med 2021;78:1-19.
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