"Hindsight Bias" Common in ED Missed Sepsis Suits
Many involve "cascading chain of errors"
Malpractice claims alleging missed or delayed diagnosis of sepsis, in which a patient is initially brought to the emergency department (ED) and ultimately dies or suffers a highly adverse outcome, can rarely be traced to a single mistake, according to Damian D. Capozzola, JD, of The Law Offices of Damian D. Capozzola in Los Angeles, CA.
"Instead, they usually arise out of a cascading chain of errors," he says. "It often starts out with a missed diagnosis in the ED." The patient typically sees a number of physicians and medical professionals all of whom, in hindsight, perhaps should have recognized the symptoms of sepsis or, at a minimum, sought additional expertise, says Capozzola.
In a 2010 missed sepsis case, the plaintiff's attorney alleged that a team of doctors and nurses missed multiple symptoms of sepsis in the five hours between the patient's arrival in the ED and the patient's death.1
"It is not uncommon for plaintiffs to seek millions of dollars in damages in these kinds of cases, where the law permits such large recoveries," says Capozzola.
Was Care Reasonable?
"Missed sepsis cases are occurring despite concerted efforts in recent years by the medical community to reduce mortality from severe sepsis and septic shock," notes Capozzola.
The number of hospitalizations for sepsis more than doubled between 2000 and 2008, according to a 2011 report from the National Center for Health Statistics.2
"In a delayed diagnosis or failure to diagnose case, regardless of how the case is postured in the pleadings, one way or another the case is going to boil down to whether the emergency physician (EP) acted reasonably," Capozzola says.
The defense would seek to prove, for example, that a qualified EP in similar circumstances could have reasonably come to the same conclusions, prescribed the same treatments, or made the same decisions as to whether to seek additional expertise, admit, or discharge the patient.
Capozzola recommends that EPs carefully document their rationale with regard to diagnoses, prescribed courses of treatment, or recommendations for discharge.
"The bottom line is that if the EP reaches a conclusion of sepsis, it needs to be documented," says Capozzola. "If he or she reaches a different conclusion, that, likewise, should be documented, ideally referencing symptoms compelling one conclusion over another."
Plaintiff Will Allege These Things
"There is no one underlying common thread in these types of cases," says David P. Sousa, JD, senior vice president and general counsel at Medical Mutual, a Raleigh, NC-based provider of professional liability insurance.
Sousa says that in missed sepsis cases, the allegation is generally going to be that the EP should have done the following two interventions, and that earlier action would have changed the patient's outcome:
• Proactively medicated with an antibiotic. This presumes that the patient's presentation warranted this, and that the right antibiotic would have been chosen, says Sousa.
• Obtained stat cultures. This presumes that the patient's presentation warranted a stat culture, and that at the time, and in that ED, they could get results back stat, says Sousa.
"Hindsight bias is always easy to come by in these cases," says Sousa. "Somebody will always offer that all that the EP had to do is just start the patient on an antibiotic. ED medicine is not that easy."
Sousa says that when the patient's presentation suggests that there is a serious infection process that could lead to sepsis, virtually all EPs will treat the patient appropriately. "It is usually the unique, uncommon, and unexpected presentation that leads to the failure to treat and then a claim," he says.
The problem with sepsis is that the signs and symptoms fever, lethargy, fatigue are so non-specific that there is seldom any obvious specialty to consult, says Dan Groszkruger, principal of Solana Beach, CA-based rskmgmt.inc. "Depending on the time of day or day of the week, requesting an internal medicine consult may not be easy," he adds.
In any case, says Groszkruger, the patient's non-specific symptoms are unlikely to give the specialist enough information to generate a more specific diagnosis or to adopt a more aggressive treatment plan.
"In my experience, preventing patients from progressing into life-threatening sepsis seems to rely upon the experience of the ED physician," says Groszkruger. "A patient who looks 'too sick' will be held in observation, rather than discharged, to see if the problem worsens."
1. McBryde v. Harnett Health System, Inc., et al. Hartnett County (N.C.) Superior Court Case No. 9CVS02902.
2. Hall MJ, Williams SN, DeFrances CJ, et al. Inpatient care for septicemia or sepsis: A challenge for patients and hospitals. NCHS data brief, no. 62. Hyattsville, MD. National Center for Health Statistics. 2011.