Suits for Missed Sepsis in EDs Are on the Rise

Lawyers looking for treatment delays

If an emergency department (ED) patient with impending sepsis is discharged, returns hours later in septic shock, and dies or develops organ failure, "you're likely to get sued," warns Bruce Wapen, MD, an emergency physician with Mills-Peninsula Emergency Medical Associates in Burlingame, CA.

Wapen says he is seeing an increasing number of lawsuits involving sepsis cases missed in EDs. Just as EDs are now held to a different standard of care for myocardial infarction, acute coronary syndrome, and stroke due to new treatment options, the same is now true of sepsis cases, he explains.

"This goes back to about 2003, when it became apparent we weren't doing a good job of identifying sepsis in the ED, let alone treating it," he says. "Patients are at risk for a very rapid demise if they aren't treated aggressively."

EDs began implementing new interventions to identify existing or pending sepsis at that point in time, says Wapen. "EDs had this pretty well worked out as of around 2008. By now, it should be implemented everywhere," he says. "Lawyers are looking at charts of people who died of sepsis to see if it was identified early on and treated in an aggressive manner."

Plaintiff attorneys can effectively argue that the emergency physician (EP) "knew or should have known" that in order to diagnosis sepsis, a serum lactate is ordered, and if it's elevated, that is an indication of sepsis, he says.

EDs will also be held to the standard of care for treatment once sepsis is identified, adds Wapen, including the early administration of fluids and antibiotics.

Cases May Be Insidious

Sepsis can present in an obvious manner, with systemic inflammatory response syndrome and end organ dysfunction, "or, all too often, insidiously," says Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS in Chardon, OH.

The patient may or may not have a fever in the ED, says Garlisi, and the elderly or immunocompromised patient may not have leukocytosis. By the time sepsis is obvious, the patient has spiraled downward, he adds.

If the allegation in a medical malpractice suit is that an EP missed the signs and symptoms of sepsis, it would be framed as a misdiagnosis allegation, along with claims of breach of the standard of care, according to Linda M. Stimmel, JD, an attorney at Wilson Elser Moskowitz Edelman & Dicker in Dallas, TX.

"I have defended missed sepsis cases. Inevitably, there is a breakdown in communication — either between healthcare providers or with the patient regarding how important it is to return to the ED if symptoms persist or change," she says.

A plaintiff could allege that the EP failed to order the proper labs or diagnostic tests, or that the EP misinterpreted the results of the tests, she says.

If sepsis is suspected, ED physicians should document these items, advises Stimmel:

• the differential diagnosis, which would include sepsis;

• the labs or diagnostic tests that are ordered to determine if sepsis is present;

• the results and subsequent interpretation of the results;

• the treatment communicated to the patient, including charting that the patient understood what he or she was supposed to do, any referrals that were made, and clearly stating whether follow-up was required.

"If those elements occurred and were correctly documented, the case would be very defensible," says Stimmel.

If a plaintiff alleged that the wrong tests were ordered, Stimmel says this could be proven by expert testimony that shows most EPs would have ordered different diagnostic tests or performed different interventions when sepsis is suspected.

"I would recommend regular communication among the ED physicians in the hospital that discusses what each physician is doing when sepsis is suspected," she says. This can prevent a plaintiff using other EPs' actions to prove the standard of care was breached in a case of missed sepsis, she adds.

If the patient is admitted, the ED chart should indicate that a report was given on the potential sepsis diagnosis, says Stimmel. "Chart that the nurse who orients the patient to the floor has acknowledged the ED information," she adds.


For more information, contact:

• Andrew Garlisi, MD, MPH, MBA, VAQSF, University Hospitals Geauga Medical Center, Chardon, OH. Phone: (330) 656-9304. Fax: (330) 656-5901. E-mail:

• Linda M. Stimmel, Attorney at Law, Wilson Elser Moskowitz Edelman & Dicker, Dallas, TX. Phone: (214) 698-8014. Fax: (214) 698-1101. Email:

• Bruce Wapen, MD, Foster City, CA. Phone: (650) 577-8635. Fax: (650) 577-0191. E-mail: