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Sepsis and clinical negligence claims - Helen Thompson sets out the possible legal remedies after sepsis is misdiagnosed or not recognised

13/03/2017
In recent years, cases of patient deaths due to incorrect diagnosis and delayed treatment of sepsis have caught the attention of the media.

According to the UK Sepsis Trust, there are around 150,000 cases of sepsis each year, of which 30% prove fatal. An independent report by the National Confidential Enquiry, into patient outcome and death revealed delays in identifying sepsis in more than a third of cases.

Sepsis is a condition that can occur when the body responds to an infection. Fighting the infection can cause the immune system to go into overdrive, resulting in inflammation throughout the body and damage to organs and tissues. Sepsis can be life-threatening and if not treated quickly and effectively can result in multi-organ failure and death.

Early diagnosis and treatment of sepsis is vital to preventing deterioration and permanent injury, aiding prompt recovery and patient survival.

In 2015 Dr Ron Daniels, CEO of the UK Sepsis Trust and a frontline consultant outlined that if diagnosed and treated in the first hour following presentation with sepsis, a patient has more than an 80% survival rate. After the sixth hour, this plummets to a 30% survival rate.

In December 2016 the Health Secretary launched a UK sepsis awareness campaign aimed at educating adults about symptoms of sepsis and what to do if it is suspected in young children. It also introduced prompt screening and effective treatment on admission to hospital for at-risk patients and a scheme to ensure that health professionals have the knowledge and skills to identify and treat sepsis.

 

 

The campaign was preceded in July 2016 by publication of new guidance by the National Institute for Health and Care Excellence (NICE) in relation to recognition, diagnosis and early management of sepsis.

NICE Guideline 51 applies to primary, secondary and tertiary care and sets out what is required of health professionals in terms of examination, tests and investigations that should be undertaken where sepsis is suspected and the medical treatment that should be commenced.

The guideline stipulates that where sepsis is suspected outside a hospital setting patients should be referred to hospital as an emergency. As such, suspected sepsis should be regarded with the same urgency as a heart attack. The guideline also details that upon presentation to hospital the patient should be reviewed by a senior clinical decision maker and discussed with a consultant. A venous blood test should be taken to measure inter alia inflammatory markers (including CRP) and vital organ function. A blood culture should also be performed to identify any blood-borne infection.

In cases where a patient meets the high risk criteria for sepsis the guideline stipulates that a broad spectrum antibiotic should be administered without delay and at least within one hour of the criteria being met. Intravenous fluid resuscitation should be commenced in addition to a chest x-ray and urinalysis and if necessary, further radiological imaging to identify the source of infection. Patients with suspected sepsis should be monitored closely and a consultant should be alerted if the patient fails to improve within one hour of commencement of antibiotics and IV fluids.

Sepsis and clinical negligence claims

People can become very ill and sometimes sustain permanent injury or even die as a result of sepsis. This can occur even when medical professionals provide excellent care. However, sometimes injury can result from substandard medical care resulting in delays and multi-organ failure resulting in delays in diagnosis and commencing effective treatment.

Fieldfisher’s clinical negligence team frequently sees cases involving injury to individuals due to sepsis. Some examples of recent cases include:

  • Postnatal maternal septicaemia due to inappropriate discharge and a failure to give early antibiotics. The patient suffered spread of infection to the pelvic muscles, abscess formation and multi-organ failure. Severe sepsis caused deterioration in some joints and significant physical disabilities.
  • Inappropriate drainage of an endometriotic cyst leading to peritonitis and delayed diagnosis and treatment of sepsis. The patient required bowel resection, a temporary stoma and further abdominal operations.
  • Inadequate treatment of bowel obstruction and abdominal collections following a routine spinal operation. The patient suffered chronic sepsis, suffered profound malnourishment and multi-organ failure resulting in death.
  • Acute illness in an eight month old baby erroneously diagnosed with tonsillitis and discharged from hospital resulting in a delay in diagnosis and treatment of meningococcal septicaemia and death.
  • Failures by midwives to suspect abdominal sepsis in a mother in the days after delivery resulting in a delay in commencing antibiotics and death.

Breach of duty

In order to establish whether there has been substandard medical care in the diagnosis and/or treatment of sepsis, a wide range of independent expert opinion may be required. From the perspective of the clinical negligence practitioner some of the potential difficulties in establishing breach of duty in a sepsis case are outlined below.

While in some scenarios prophylactic antibiotics may be given to prevent infection, such as at the time of an operation, prophylactic antibiotics are not always indicated in circumstances where there is an increased risk of infection. Infection and sepsis may occur without any breach of duty on the part of medical practitioners.

Sepsis can develop despite preventative steps. In certain medical situations patients will be given antibiotics to prevent infection developing. However, sometimes, due to the source or type of infection these measures may not be effective and sepsis may develop despite all reasonable steps being taken to prevent it.

Symptoms of sepsis can be non-specific and mimic other less serious common illnesses. Symptoms can include tachycardia (a rapid heart rate), hypotension (low blood pressure), increased respiratory rate, confusion, drowsiness, hypothermia, diarrhoea, decreased urination, skin discolouration and flu-like symptoms including fever. Depending on the presenting symptoms it may be reasonable for a medical practitioner to initially diagnose another less serious type of infection or illness and not suspect sepsis. In these circumstances it can be difficult to establish that there was a breach of duty in failing to refer or admit a patient to hospital or to commence effective treatment in the early stages of the condition.

When sepsis occurs in circumstances where one would expect a patient to be experiencing pain, raised temperature or changes in blood results such as in post-operative or postpartum periods, it may be difficult to distinguish sepsis from other benign, anticipated symptoms. When a delay in diagnosis and treatment occurs post-operatively or postpartum it can be difficult to establish that there has been substandard care as it may be reasonable for clinicians not to initially diagnose sepsis.

The source of infection or sepsis can be difficult to identify and when infection enters the bloodstream (septicaemia) it can be transferred to other, unexpected areas of the body. This can result in deep-seated foci of infection such as abscesses which can continue to fuel sepsis even if appropriate antibiotics are being administered. Difficulties in identifying the underlying driver of the sepsis can delay focused and effective treatment being commenced. This may not amount to substandard care, particularly if appropriate tests and investigations have been undertaken.

In certain cases post-dating July 2016 NICE Guideline 51 will assist greatly in identifying where possible breaches of duty have occurred. Comparison of the facts of a claimant’s case to the guideline may assist in identifying where medical practitioners have not assessed the patient adequately, carried out necessary investigations, sought senior review or commenced antibiotics in the required timescales.

Of course every case is different and turns on its individual facts. However, in cases pre-dating July 2016 or in general, when acting for a client in a clinical negligence claim involving injury due to sepsis some potential considerations relevant to breach of duty include:

  • Evidence of any failures to refer a patient to hospital, decisions to discharge a patient from A&E or hospital when the patient is suffering with symptoms consistent with infection or sepsis.
  • Evidence of a failure to take blood tests where the patient has persisting symptoms or on presentation to hospital. If bloods were taken, whether the results are suggestive of infection and sepsis. Key considerations are whether the C-reactive protein (CRP) level is raised and whether the white cell count (WCC), creatinine, urea and other full blood count results are abnormal.
  • Failures or delays in taking blood cultures, performing CT or MRI scanning of symptomatic areas of the body if the source of infection has not been definitively identified
  • In some surgical and postpartum cases evidence of failures or delays in giving prophylactic or empiric antibiotic therapy.
     
  • Where collections, abscesses or necrotic tissue develop due to infection, failure to timeously drain or surgically remove them.

Causation

To bring a successful clinical negligence claim for injury caused by sepsis it is also necessary to establish that with an appropriate standard of care the outcome for the claimant or the deceased would have been different. In order to successfully establish causation a wide range of expert opinion may be required in a number of expert disciplines. The fact that sepsis can progress very quickly can make causation problematic because it limits the window of opportunity to commence effective treatment before the condition deteriorates and causes permanent injury or death.

In cases where sepsis develops in the community the patient may become very unwell before suspecting that their condition may be serious and presenting to a GP or hospital.

In other cases, due to the non-specific nature of the symptoms of sepsis, by the time a reasonable medical professional would be expected to diagnose sepsis and administer medical therapy, the condition may have become severe.

Sepsis can be caused by a variety of types of infection including viral, bacterial and fungal infections. The precise cause of the infection and drugs to which it will be sensitive must be identified in order to administer effective treatment and this often requires a large number of tests and investigations. Also, as sepsis can cause injury throughout the body, to muscle, joints, tissue and organs antibiotic therapy alone may not be enough to successfully treat the condition.

Other treatment requirements might include inter alia surgical debridement, resection and drainage of collections or abscesses. It may take a number of time-consuming tests and investigations to identify areas of the body which require treatment and further time to arrange for medical professionals with the appropriate knowledge and skill to undertake surgical or other types of intervention.

Any of the above scenarios can result in justifiable delays in management and difficulty in treating sepsis in its early stages. This can have implications for the window of opportunity to effectively treat sepsis before it progresses and causes permanent injury or death and can in turn present difficulties establishing causation in a clinical negligence claim.

Compensation

The amount of damages in a clinical negligence claim involving injury due to sepsis varies significantly depending upon the circumstances of the case. Compensation can range from several hundred pounds for a period of prolonged pain and suffering or a transient injury which resolves up to hundreds of thousands or even millions of pounds in cases involving permanent physical and/or neurological disability.

As for any fatal claim, where a death results from a delay in diagnosis or treatment of sepsis the value of the claim will largely be determined by the deceased’s personal circumstances and whether they had a spouse, long-term partner, civil partner, minor children and/or financial dependents. As for cases in which a claimant sustains permanent physical and/or neurological injury due to sepsis the value of the claim will depend largely on the age of claimant, severity of disability and symptoms, ability to maintain remunerated employment and level of future needs.

In summary, cases involving injury or death from sepsis can be some of the most distressing for claimants and their family members as they will have been through a period of usually rapid-onset, life-threatening illness and may have even lost a loved one. Often they will have sought medical assistance in the early stages but have been incorrectly reassured that their illness was nothing to cause concern. Given the outcome they can feel they were unreasonably dismissed and betrayed by the medical profession. However, due to the nature of sepsis, often devastating outcomes can occur with all reasonable medical care. In other sepsis cases, establishing breach of duty and causation in a clinical negligence claim can be complex and difficult.

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