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Supreme Court appeal dismissed after doctors fail to consider sepsis in infant

16 July 2020 | Avant Media

This complex case reminds doctors of their legal duty to consider all possible causes of a patient’s condition, particularly if the cause is reversible with treatment.

Doctors treating an infant with burns were found to have breached their duty of care for failing to recognise the possibility she had sepsis, test for sepsis and administer antibiotics in a timely manner. The original court decision was appealed by the health service after they were found liable for the serious injuries the infant sustained.

Case facts

The 16-month old baby was admitted to the paediatric burns unit on 9 December 2005 with superficial and partial thickness burns to approximately 18% of her total body surface area (TBSA). All swabs and a multi-resistant staphylococcus aureus screen were negative, except for a knee swab positive for enterobacter infection. Blood samples showed neutrophils with “left shift with toxic changes.”

On 10 December, a chest x-ray showed a mild patchy change in the right lung base medially and haematology revealed mild neutropenia. The next day, a chest x-ray showed widespread patchy areas of alveolar consolidation in both lungs. That evening she was admitted to the ICU and intubated. Her neutrophil count was 0.1, CRP level: 242 mg/L and a blood culture negative for bacteria. The following day, at 2 am, she was placed on a ventilator and administered ceftriaxone, gentamicin, vancomycin and meropenem, and a blood infusion.

A few hours later, she developed Systemic Inflammatory Response Syndrome (SIRS) and Acute Respiratory Distress Syndrome (ARDS). She suffered cardiac arrest, multi-organ failure, brain damage and cerebral palsy.

Sepsis finding challenged

The case turned on whether the infant developed sepsis, the relevant standard of care and whether the doctors breached that standard of care.

The trial judge gave 13 reasons, which in combination, satisfied him she had sepsis by the evening of 10 December and her sepsis evolved until she was treated in the ICU. The reasons included:

  • Evidence that although SIRS and ARDS can develop without sepsis present, the more common, if not most common, cause of the syndromes , in paediatric patients is sepsis.
  • The chance of a child around the same age with burns to less than 20% of their TBSA developing ARDS due to SIRS in the absence of sepsis is, if not “vanishingly small,” very low indeed. 
  • The infant had an enterobacter infection in her right knee burn wound which was capable of contributing to or causing her ARDS.
  • By the evening of 11 December the infant exhibited several features suggestive of sepsis rather than a severe inflammatory response to sterile burns.
  • Her white blood cell count and neutrophil count began to rise within a relatively short time of the infant receiving antibiotic treatment. This was consistent with the antibiotics treating the infection.

The trial judge also concluded that had her sepsis been treated with antibiotics starting at around 3 am on 11 December, she would not have developed ARDS, to the extent she did, and suffered catastrophic injuries.

The health service defended the matter on the basis the infant was treated in accordance with usual protocols for a child with burns and there was no clear evidence of sepsis before her admission to ICU. While they accepted she developed SIRS and ARDS, they challenged the critical finding she had sepsis by the evening of 10 December which, if treated, could have prevented the ARDS. Instead, they contended it was her burns alone that caused her to develop SIRS and ARDS. Therefore, antibiotic treatment would have made no difference to her condition.  

The court dismissed this argument, noting the evidence did not support the conclusion that the probability of developing ARDS in the infant’s circumstances was the same, with or without sepsis. It accepted evidence the risk of ARDS is closely related to the area and severity of burns and where the infant had no full thickness burns and burns to no more than 18% of her TBSA, she was unlikely to develop ARDS due to her burns alone.

Breach of duty of care

The health service’s appeal grounds centred on the trial judge’s interpretation of the state’s statutory defence which says: “An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time, of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.”  

While this distinction was not resolved, the court noted the question was not whether the infant’s burns were treated in accordance with a widely-accepted practice, as the health service argued, but whether the failure to recognise she had sepsis, test for sepsis and administer antibiotics, was widely accepted as competent professional practice.

The court noted the trial judge answered “no” to that question. “Unsurprisingly, none of the medical witnesses who gave evidence suggested that it was widely accepted by peers of doctors working in a paediatric burns unit as competent professional practice to fail to recognise that a patient is, or might be, suffering from sepsis and in those circumstances to fail to test for sepsis and to fail to administer antibiotics,” the trial judge said.

The court accepted evidence, based on the infant’s medical records, that prior to her being admitted to the ICU, the doctors did not consider her deterioration may be due to sepsis as opposed to fluid overload, with only the latter recorded in the records.

The court found her symptoms on 10 December should, by no later than around 2 am on 11 December, have caused the treating doctors to recognise the possibility she had sepsis. In light of this possibility, they should have taken a blood culture and commenced broad spectrum antibiotics as quickly as was reasonably possible pending receipt of the results.

Ultimately, the court decided the doctors did not meet the standard of care required of the ordinary skilled doctor working within the specialist field of paediatric burns.

All grounds for appeal were unsuccessful and the appeal dismissed.  

Key lessons

This case illustrates that if a patient’s symptoms or investigation results point to the possibility they have a condition which may prove catastrophic if not treated as soon as possible, doctors have a legal obligation to consider all possible causes of the patient’s condition and take steps to exclude these conditions.

It’s important to keep an open mind and consider the development of conditions, such as infections, based on the significance of low level pathology results and symptoms. This case highlights that:

  • If the patient deteriorates, it’s important to review the original diagnosis.
  • If sepsis is suspected on clinical grounds, regardless of recommendations about the judicious use of antibiotics, a blood culture should be taken and antibiotics commenced while waiting for the results.
  • Any differential diagnoses should be considered and recorded in the patient’s medical notes. See our factsheet, Medical records – the essentials.

More information

Find out what the main issues are driving member diagnosis-related claims in our analysis and view our webinar: ‘Understanding diagnostic errors’.

If you receive a complaint and require medico-legal advice, email us on nca@avant.org.au or call 1800 128 268, available 24/7 in emergencies.


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