Sepsis is one of the most dangerous complications of infection and a significant cause of hospitalization and death in the United States. For Texas families, however, a loved one’s death from sepsis presents a more complicated question: Was the death an unavoidable consequence of serious illness, or did failures in the patient’s care allow a treatable infection to progress until it became fatal?
At Davis & Davis, we know the answer is rarely found on the death certificate.
A diagnosis of sepsis, even when listed as a cause of death, does not by itself establish medical negligence. A viable medical malpractice claim generally requires evidence that a physician, nurse, hospital, nursing home or other health care provider failed to meet the applicable standard of care and that the failure caused the patient’s injury or death.
In sepsis cases, we often find that means looking backward.
What Sepsis Is and How It Progresses
Sepsis is the body’s extreme and potentially life-threatening response to an infection. Pneumonia, urinary tract infections, skin and wound infections and gastrointestinal infections are among the infections that can lead to sepsis. As the condition progresses, it can cause tissue damage, organ dysfunction, septic shock and death. According to the Centers for Disease Control and Prevention, at least 350,000 adults in the U.S. die during hospitalization or are discharged to hospice each year after developing sepsis, and one in three adults who dies in a hospital had sepsis during that stay.
Symptoms can include fever or chills, a high heart rate, shortness of breath, confusion or disorientation, extreme pain or discomfort and other changes in a patient’s condition. But symptoms vary considerably from patient to patient, particularly among elderly or medically fragile individuals.
We see that distinction as important when evaluating potential malpractice.
Looking Beyond the Sepsis Diagnosis
A claim framed simply as a “failure to diagnose sepsis” may overlook the more significant question: What happened before the patient became septic?
The potential negligence may have occurred hours or even days earlier. Poor wound care may have allowed an infection to develop. Symptoms of a urinary tract infection may have gone unrecognized. Changes in vital signs may not have been adequately monitored or communicated. A deteriorating nursing home resident may not have been transferred to a hospital quickly enough. Laboratory abnormalities may have gone unaddressed. Antibiotics or other treatment may have been delayed.
By the time “sepsis” appears prominently in the medical record, the events that determine liability may already have occurred.
Sepsis in Nursing Homes and Long-Term Care Facilities
Sepsis cases involving nursing homes and long-term-care facilities can be especially difficult to evaluate.
Residents are often older and may have multiple chronic illnesses, weakened immune systems or cognitive impairments that prevent them from clearly describing their symptoms. Some depend on urinary catheters, feeding tubes, central lines or wound care, creating additional opportunities for infection.
Older adults also may not exhibit the symptoms typically associated with infection. Instead of developing a pronounced fever or reporting significant pain, a resident may become confused, lethargic, weak, lose his or her appetite or simply appear different from baseline.
We know those subtler changes make the medical record particularly important.
When we evaluate a nursing home sepsis death, we look at when the resident first showed signs of deterioration; who observed those changes; whether they were documented; whether vital signs were taken; when a physician or other provider was notified; what instructions were given; and how much time passed before the resident was transferred for a higher level of care.
A resident ultimately may die in a hospital, but the conduct most relevant to the case may have occurred at the nursing facility before the transfer ever took place.
Reconstructing the Medical Timeline
Sepsis litigation requires more than identifying a bad outcome. We have to reconstruct a medical timeline and establish what should have happened differently.
That generally requires a detailed review of the patient’s records before and during the infection. Relevant evidence may include nursing notes, physician orders, laboratory results, vital-sign trends, medication administration records, wound-care documentation, hospital-transfer records and facility policies or protocols.
The timing can be critical.
What was the patient’s baseline condition? When did it begin to change? When were the first signs of infection present? When should those signs reasonably have prompted additional testing, physician notification, antibiotics or transfer to a hospital? When did treatment actually begin? And most importantly, would appropriate intervention at an earlier point probably have changed the outcome?
We find the last question is often where difficult sepsis cases are won or lost.
A plaintiff cannot establish liability merely by showing that an infection was diagnosed late. The medical evidence must support the connection between the alleged delay or other breach in the standard of care and the resulting injury or death, which is why we rely on skilled medical professionals to build that connection.
Texas Procedural Requirements Under Chapter 74
Families considering a sepsis-related health care liability claim in Texas also face the procedural requirements imposed by Chapter 74 of the Texas Civil Practice and Remedies Code.
Texas generally imposes a two-year limitations period on health care liability claims, measured under the circumstances described by the statute from the occurrence of the breach or tort or the completion of the relevant course of treatment or hospitalization.
Chapter 74 also generally requires a claimant to provide written notice of a health care liability claim to each physician or health care provider at least 60 days before filing suit, accompanied by the required authorization for release of protected health information.
After litigation begins, the report requirement from a qualified medical professional becomes particularly important. A claimant generally must serve each defendant with that report and the reviewing professional’s curriculum vitae no later than 120 days after that defendant files its original answer, unless another statutory provision or permissible agreement alters the deadline.
The report must address the applicable standards of care, how the defendant allegedly failed to meet those standards and the causal relationship between that failure and the patient’s injury or death.
We know these requirements make it risky to file first and investigate later.
We work to understand the medicine, potential defendants and theory of causation early enough to bring in qualified medical professionals and develop a supportable theory of the case within Chapter 74’s deadlines.
Causation Defenses in Sepsis Litigation
Sepsis cases also present several predictable causation defenses.
Defense counsel may argue that the infection progressed unusually rapidly; that the patient’s initial symptoms were nonspecific; that the medical staff appropriately responded to the information available at the time; or that earlier treatment would not have changed the outcome.
In elderly and medically complex patients, causation can become even more contested. A defendant may contend that underlying cancer, kidney disease, cardiovascular disease, diabetes, advanced age or another serious medical condition, not an alleged delay in treating infection, caused the patient’s decline and death.
We treat these as issues to consider from the very first evaluation, not after a lawsuit is already filed.
Skilled medical professionals can help determine whether the records support negligence, but they are equally important in identifying cases in which the medicine does not support causation.
Damage Caps in Texas Medical Malpractice Claims
Texas’s statutory limitations on noneconomic damages must also be considered when we evaluate a potential sepsis case.
In health care liability claims, noneconomic damages are generally limited to $250,000 per claimant against physicians and other individual health care providers, regardless of the number of those defendants. Noneconomic damages against a single health care institution are generally capped at an additional $250,000, with an aggregate institutional cap of $500,000 when more than one institution is liable.
Economic damages are not subject to those Chapter 74 caps.
As a result, the age, employment history, medical expenses and other circumstances of the patient may significantly affect the economics of pursuing a case. We find that analysis can be especially important in nursing home cases involving elderly or retired patients.
What Families Should Ask
For a family calling about a loved one who died from sepsis, the central question should not be simply whether the patient had sepsis or whether someone failed to diagnose it.
The better questions are: Where did the infection begin? What warning signs appeared? Who knew about them? What was done in response? What should have been done? And would appropriate intervention probably have prevented the patient’s death or serious injury?
Answering those questions can require extensive medical-record analysis, skilled physician and nursing consultants, and an understanding of the procedural demands unique to Texas medical malpractice litigation.
Contact Davis & Davis for a Free Consultation
Not every sepsis death is the result of medical negligence. But some cases that initially appear to be unavoidable deaths reveal a very different story once the medical timeline is reconstructed.
With nearly 70 years of combined experience and more than 300 jury trials, we have devoted our practice exclusively to helping Texas and nationwide families through the aftermath of medical malpractice, and we charge no upfront fees. If your family is facing this kind of loss and you are unsure whether your loved one’s care met the standard required by law, contact our office to schedule a free consultation before time runs out.
