Legal Issues Associated with the Prehospital Care of Sepsis Patients

You are called in the middle of the night to a hotel in a high altitude tourist city. Your patient is a 32-year-old female who arrived from sea level the previous night, and has felt unwell with intractable vomiting since that time.

She has a history of rheumatoid arthritis and is on Prednisone. Her heart rate is 120, her blood pressure 110/60, but she tells you she normally has low blood pressure. Her blood glucose is 92.

The patient has full decisional capacity, but refuses transport when she finds out there is a charge for EMS transportation to the hospital. Hours later, the patient presents to the emergency department via taxi. She is subsequently diagnosed with severe sepsis and, despite aggressive treatment, she dies within 24 hours.

Two years later, you are informed that her parents have filed a lawsuit alleging that EMS failed to properly assess her and educate her on the potential severity of her condition so that she could make a fully informed decision regarding EMS transport.

The Standard of Care

There are four elements of negligence that a plaintiff must prove in order to recover a monetary award in litigation in these cases. First, there must be a legal duty: a relationship between the patient and the provider that is recognized by law. In most cases, this element is easily met when EMS responds to a call.

Next, the plaintiff must show that there was a breach of the standard of care. The standard of care is what a reasonable provider would do in the same or similar circumstances and is defined by training, experience, treatment guidelines and medical literature. It is a dynamic concept, changing over time with new research. As we have seen with stroke, STEMI and the reduction in backboarding of patients, EMS is constantly developing new skills and treatment guidelines to keep up with advances in medical research.

The third and most difficult element for a plaintiff to prove is causation. The plaintiff must demonstrate that the breach in the standard of care is causally linked to the resulting harm. This is often easier said than done. For example, if an expert witness for EMS testifies that the patient passed a “point of no return” in sepsis upon arrival of EMS, any breach in the standard of care cannot be said to have caused the patient’s death.

The final element is the harm itself, whether it is a few days in the hospital or death. Harm can be physical, emotional or financial in nature and is known in law as “damages,” measurable in dollars.              

Training in Early Recognition

The recognition of sepsis in the prehospital setting can be a significant benefit to patients who are in the early stages of the continuum, and who can benefit from expedited care in the ED, as well as hospital admission and continued treatment.1—3

Early sepsis may be difficult to identify in the prehospital setting because its presentation may be hard to sort out from the myriad of potential medical conditions seen by EMS. However, the failure to identify sepsis can subject EMS to litigation when studies show that patients who presented to the ED via EMS fared better with in-hospital processes than those who arrived by other means.

As with stroke and STEMI, we used to think that EMS could do no more than step on the gas to get these patients to definitive care. However, we now know the potential for early recognition of sepsis by EMS can greatly benefit patients. If EMS can let the hospital know that sepsis is suspected, your patient is more likely to be evaluated quickly with the potential for sepsis in mind. More will be expected of EMS as the standard of care for recognition of early sepsis changes. We have an obligation to train our personnel and adjust our protocols to focus on systemic inflammatory response syndrome (SIRS) and sepsis recognition, treatment and hospital notification.

EMS personnel are not currently trained to recognize and treat the early signs of sepsis in initial course work. We learn about septic shock as a subset of shock with inadequate tissue perfusion, but we do not learn how to assess a patient so that we can recognize the early warning signs.     

Appropriate training can help EMTs and paramedics understand the syndrome, how it begins, why it happens, which patients are most at risk and what can be done to turn it around, even though the early signs of SIRS may be subtle.

A 2013 study found that although EMS personnel had an awareness of sepsis, awareness was greater among paramedics than EMTs. Within the study, EMS providers noted that the diagnosis of sepsis is often missed in the prehospital setting.4

This study suggested that paramedics could be integrated into early identification and treatment of sepsis, while EMTs would benefit from focused education and training.4 Another 2013 study demonstrated that EMTs had poor understanding of the diagnosis and treatment of sepsis, suggesting the need for additional education. 5

It is important for EMS to understand that any patient who is immunocompromised due to illness is at increased risk for infection and sepsis. They must be taught that patients who are immunosuppressed due to prescribed medications are at higher risk, as are patients who are undergoing chemotherapy.


Many EMS services do not currently have a treatment guideline for sepsis, although it is clearly a medical emergency worthy of our attention. Our triage models can therefore be improved to investigate the possibility of early sepsis, with a dedicated treatment guideline showing the criteria for SIRS.     

However, a word of caution: Treatment guidelines are only effective if EMS systems comply with them. Standards that are not reached, or cannot be reached (particularly time-dependent ones) can be viewed as a failure to comply and result in allegations of negligence.

Treatment guidelines are often presented by plaintiffs’ attorneys as evidence of the standard of care. There is nothing an attorney likes more than to point at a poster-sized board of your treatment guideline and say, “They didn’t follow their own rules.”

As with stroke and STEMI, sepsis treatment guidelines should include prompt transport to an appropriate facility–one that has a sepsis alert program, sepsis teams, the ability to deliver early goal-directed therapy and well-equipped intensive care units. Prolonged scene times can be a delay to time-dependent definitive care.1 Please review other articles in this JEMS special section on sepsis to further guide your treatment protocols and standards of care.

Negligence Claims

The majority of legal claims involving sepsis allege a failure to recognize and treat the condition in a timely manner. The early administration of fluids and antibiotics is the cornerstone of management for patients with severe sepsis and septic shock.6 Delayed recognition of SIRS in the ED and failure to administer appropriate antibiotics in a timely manner frequently result in litigation.

Even if a timely physician order for antibiotics is entered into the chart, a delay caused by the pharmacy or by nurse administration of the prescribed drugs can be a point of contention in litigation.

Consider the following litigated cases:

  • Puentes v. Memorial Medical Center, (2014): A 46-year-old woman developed severe abdominal pain unrelieved by narcotic analgesics in the ED. She had recently undergone chemotherapy for breast cancer and had eaten dinner at a buffet restaurant the previous evening. The ED physician made a preliminary diagnosis of foodborne illness and admitted the patient to the hospitalist service. Although she was initially afebrile, her condition worsened into sepsis and then into septic shock due to necrotizing enterocolitis from the bacteria clostridium septicum. She died less than 12 hours after her hospital admission. The family sued the hospital, the emergency physician and the hospitalist for failing to promptly recognize and aggressively treat sepsis. This case was settled.
  • Atencio v. Presbyterian, (2015): A 46-year-old patient was seen at an urgent care center for fever of unknown origin and mental status changes. The physician charted that no source of infection could be found, but did not do a simple bedside urinalysis. The lawsuit alleged that the failure to perform the simple, inexpensive and noninvasive test resulted in a failure to diagnose a urinary tract infection. Two days later, the patient presented to a tertiary care center and was diagnosed with pyelonephritis that turned rapidly into sepsis. Fortunately, due to rapid and aggressive treatment, she survived. This case was also settled.

These cases illustrate that a hospital’s failure to carefully assess and document sepsis indicators, failure to develop a sepsis team or failure to have early, goal-directed therapy in place may result in an allegation of negligence.

In the prehospital setting, similar allegations can be made and will probably be made in the future if EMS fails to fully assess a patient for the presence of potential infection, compromised or suppressed immune capabilities, or the presence of indwelling medical devices. Similarly, delayed transport, failure to transport or failure to transport to an appropriate facility can result in allegations of negligence.

With the launch of the Surviving Sepsis Campaign, plaintiff’s attorneys are well aware of the national guidelines readily available to them and to you. A perceived failure to comply with those guidelines can result in allegations against you and your service. Attorneys realize that EMS is at the beginning of a chain of potential opportunities to recognize early signs of SIRS and sepsis, and therefore may allege medical negligence if your service and its personnel do not assess for and treat sepsis or transport the patient to an appropriate receiving facility.


1. Wesley K. (Oct. 17, 2011) Study evaluates effects of EMS care on sepsis patients. JEMS. Retrieved Aug. 5, 2016 from

2. Widmeier K, Wesley K. Infection detection: Identifying & understanding sepsis in the prehospital sett, part 1 of 2. JEMS. 2014;39(1):34—37.

3. Widmeier K, Wesley K. Infection inspection: Screening & managing sepsis in the prehospital setting, part 2 of 2. JEMS. 2014;39(3):36—40.

4. Seymour C. Understanding of sepsis among emergency medical services: A survey study. Am J Emerg Med. 2012;42(6):666—667.

5. Baez A. Prehospital sepsis project (PSP): Knowledge and attitudes of U.S. advanced out-of-hospital care providers. Prehosp Dis Med. 2013;28(2):104—106.

6. Schmidt G, Mandel J. (n.d.) Evaluation and management of suspected sepsis and septic shock in adults. Up to Date. Retrieved July 27, 2016, from


  • Winnie Maggiore began her career in fire and EMS back in 1973 when she became one of the first women firefighters. She was an assistant chief of the Placitas Volunteer Fire Brigade for nearly 20 years, having helped to start the volunteer fire department in her home town. She has been an EMT since 1978 and a paramedic since 1981. She has worked as a firefighter and EMT in the field and as a state EMS administrator. She obtained her Bachelor's degree from the University of New Mexico in 1989 before moving on to obtain a law degree with a focus on health law in 1992. She is a shareholder at the law firm of Butt, Thornton & Baehr, PC where she defends physicians, dentists, oral surgeons, nurses, paramedics and other health care providers, as well as law enforcement officers, against lawsuits. Besides helping to build the Fire Brigade, one of her most important contributions was the revision of the New Mexico EMS legislation to provide broader protection and due process for licensed EMS personnel, and to make changes to allow EMTs to work in facilities such as clinics and hospitals as well as in the prehospital setting. She also made major contributions to the development of DNR regulations that allowed DNR orders to be recognized by EMS. Winnie is on the volunteer faculty at the University of New Mexico's Department of Emergency Medicine, where she teaches on legal issues for emergency medical providers. She is on the faculty of the National EMS Medical Director's Course put on by the National Association of EMS Physicians. She coauthored an important article on legal issues for EMS medical directors and has played a significant role in teaching about the legal relationship between EMS providers and their medical directors. She is a member of the JEMS editorial board and a frequent national speaker on EMS legal topics. Winnie was the proud recipient of the prestigious James O. Page award for EMS leadership in 2011. Winnie enjoys hiking in the mountains near her home with her two Dalmatians, and her husband, Dave, who is a retired emergency physician and stroke survivor.

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