Can Delayed Sepsis Treatment Be Medical Malpractice in New Hampshire?

A Sepsis Treatment Delay Can Support a Malpractice Claim, but the Medical Evidence Has to Show More Than a Bad Outcome

September is Sepsis Awareness Month, an annual observance focused on recognizing a medical emergency that affects roughly 1.7 million adults in the United States each year.

Sepsis is the body's extreme response to an infection. The Centers for Disease Control and Prevention reports that at least 350,000 adults who develop sepsis die during their hospitalization or are discharged to hospice. CDC educational materials also note that approximately one in three people who die in a hospital had sepsis during that hospitalization.

Fast recognition and treatment can matter enormously. But a poor sepsis outcome doesn't automatically mean a doctor, emergency department, or hospital committed malpractice.

The legal question is more specific: did a medical provider fail to act according to the professional standard that applied under the circumstances, and did that failure probably cause an injury or death that otherwise wouldn't have occurred?

Those questions are at the center of a New Hampshire medical malpractice claim involving delayed sepsis care.

What Is Sepsis?

Sepsis occurs when the body's response to an infection produces a life-threatening medical emergency.

According to the CDC, infections leading to sepsis most commonly begin in the lungs, urinary tract, skin, or gastrointestinal tract. Pneumonia, urinary infections, abdominal infections, infected wounds, and other illnesses can therefore become part of the clinical picture.

But sepsis doesn't require the presence of bacteria in the bloodstream.

It is also not diagnosed by a single definitive blood test. Current sepsis guidance emphasizes that physicians have to evaluate the overall clinical picture, which may include vital signs, symptoms, laboratory results, organ function, imaging, infection risk, and the patient's response over time.

That distinction matters in a malpractice case. The question generally isn't whether one abnormal number appeared in the chart. It's whether the information available to the treatment team reasonably called for further evaluation or treatment and whether the response met the applicable professional standard.

What Signs Can Cause Doctors to Suspect Sepsis?

CDC identifies several signs and symptoms that may occur with sepsis, including:

• Confusion or disorientation: A sudden change in mental status can indicate a serious infection or organ dysfunction.
• High heart rate or weak pulse: Cardiovascular changes can occur as a patient becomes seriously ill.
• Shortness of breath: Changes in breathing can be associated with sepsis and other urgent conditions.
• Fever, shivering, or feeling unusually cold: Temperature changes can accompany an infection, though not everyone with sepsis develops a high fever.
• Extreme pain or discomfort: Severe or unexplained pain or discomfort may warrant further evaluation.
• Clammy or sweaty skin: Skin changes can occur as circulation and other body systems are affected.

These findings aren't unique to sepsis.

A rapid heart rate can have many explanations. Confusion can result from medications, dehydration, neurological problems, metabolic disturbances, or other illnesses. Fever may accompany an infection that hasn't progressed to sepsis.

That is why a malpractice investigation shouldn't begin with the assumption that a single symptom automatically requires a sepsis diagnosis. The stronger analysis looks at the patient's entire presentation, risk factors, test results, progression, and what a reasonably prudent medical provider should have done with that information.

How Quickly Should Antibiotics Be Given for Suspected Sepsis?

The answer depends on the likelihood of sepsis and whether the patient is in shock.

Current Surviving Sepsis Campaign guidance treats sepsis and septic shock as medical emergencies, but it doesn't apply one identical antibiotic deadline to every patient with a possible infection.

For patients with probable or definite sepsis, or possible, probable, or definite septic shock, current guidance recommends antimicrobial treatment immediately, ideally within one hour of recognition.

When a patient has possible sepsis without shock, the analysis is more nuanced.

Clinicians are advised to evaluate whether the illness is likely infectious or noninfectious rapidly. That assessment can involve history, examination, laboratory testing, imaging, and consideration of conditions that can resemble sepsis. If concern for infection persists, current guidance recommends antimicrobial treatment within 3 hours of when sepsis was first suspected.

For a patient with a low likelihood of infection and no shock, clinicians may reasonably continue close monitoring while withholding antibiotics.

That distinction is important legally. An attorney can't establish malpractice simply by counting minutes between arrival and an antibiotic order without considering what clinicians knew during that period.

What Other Testing and Treatment Can Be Important?

Sepsis care can involve considerably more than antibiotics.

Depending on the patient's condition, evaluation and treatment may include:

• Repeated vital-sign monitoring;
• Blood cultures;
• Blood lactate testing;
• Complete blood counts and metabolic testing;
• Urinalysis or urine cultures;
• Chest imaging or other diagnostic imaging;
• Intravenous fluids;
• Vasopressor medication for qualifying septic shock;
• Supplemental oxygen or respiratory support;
• Evaluation of organ function;
• Identification of the infection source; and
• Procedures to control the source of infection when necessary.

Current guidelines recommend obtaining blood cultures as soon as possible, ideally before antibiotics, but not if doing so would cause an inappropriate delay in treatment.

There isn't one mandatory checklist that proves negligence whenever a clinician deviates from it. Patient condition, comorbidities, the suspected source of infection, treatment setting, and other clinical facts all matter.

When Can a Delayed Sepsis Diagnosis Become Medical Malpractice?

A delayed diagnosis isn't automatically malpractice.

New Hampshire law defines a medical injury broadly enough to include harm arising from a failure to diagnose, but the plaintiff still has to prove the required elements of the case.

Under RSA 507-E:2, a medical malpractice plaintiff generally must establish through affirmative evidence that includes competent expert testimony:

• The applicable standard of professional practice: What a reasonably competent provider in the relevant profession or specialty should have done at the time.
• A departure from that standard: Evidence that the defendant failed to provide care consistent with that professional standard.
• Proximate causation: Evidence that the departure caused an injury that otherwise wouldn't have occurred.

Examples that may justify closer investigation include a provider failing to respond to a significant deterioration, failing to follow up on concerning test results, failing to reconsider an initial diagnosis as a patient worsened, or discharging a patient despite clinical findings that reasonably required further evaluation or treatment.

Whether any of those situations actually constitutes malpractice depends on expert review of the medical evidence.

Does Sending a Patient Home With Sepsis Automatically Mean the ER Was Negligent?

No.

Emergency departments routinely evaluate patients whose early symptoms could represent many different conditions. A person ultimately diagnosed with sepsis may not necessarily have presented with enough information during an earlier visit to make that diagnosis reasonably apparent.

On the other hand, discharge can warrant closer review when the chart shows significant abnormalities that weren't adequately evaluated or explained.

Relevant questions can include:

• What were the patient's vital signs?
• Was there a known or suspected infection?
• Were symptoms worsening?
• What laboratory and imaging results were available?
• Did organ-function markers raise concern?
• Were abnormal results repeated or reassessed?
• Did the physician consider sepsis or another serious infection?
• Was the patient clinically stable at discharge?
• What return precautions were provided?

A Dover medical malpractice case involving an emergency department therefore needs to be evaluated from the perspective of what a reasonable provider should have known and done at the time, not simply from knowledge gained later.

What if Important Lab Results Weren't Reviewed?

A sepsis case can also involve information that was generated but not acted upon.

For example, laboratory testing may identify findings consistent with significant infection or organ dysfunction after an initial evaluation has already taken place. A hospital may also receive culture results after a patient has been discharged.

The legal question is whether the provider or hospital had a reasonable system for reviewing, communicating, and responding to clinically important results, and whether any failure in that process caused additional harm.

Evidence can include electronic health record timestamps, laboratory reports, physician notes, nursing documentation, automated alerts, telephone records, and hospital policies describing responsibility for follow-up.

Can a Post-Surgical Infection Lead to a Sepsis Malpractice Claim?

Potentially.

Recent surgery is one circumstance that can increase a person's vulnerability to serious infection. But developing an infection after surgery isn't, by itself, proof of malpractice.

The investigation may instead focus on what happened after signs of infection emerged.

Questions can include whether the surgical site was appropriately evaluated, whether worsening symptoms were communicated to the physician, whether diagnostic testing was warranted, whether antibiotics or another treatment were reasonably indicated, and whether an infected wound, abscess, or other source required a procedure for source control.

Our broader medical malpractice practice includes claims involving diagnostic errors, surgical errors, hospital injuries, and other treatment failures when the evidence supports a finding of professional negligence.

Can a Nursing Home's Failure to Escalate an Infection Cause Sepsis?

A nursing home resident can develop sepsis from pneumonia, a urinary infection, a wound, or another infection just as someone living independently can.

Older residents and people with chronic illnesses can also be at greater risk of severe illness.

A potential claim might involve evidence that staff recognized a significant change in the resident's condition but failed to notify an appropriate provider, obtain additional evaluation, or arrange emergency care when reasonably necessary.

Again, the resident developing sepsis doesn't prove neglect by itself.

The investigation must determine which symptoms staff observed, what was communicated, the resident's baseline condition, which clinical instructions were implemented, and whether an earlier response would likely have prevented the harm that occurred.

New Hampshire Has an Important Causation Rule in Delayed-Treatment Cases

This is one of the most important legal issues in a delayed-sepsis malpractice claim.

RSA 507-E:2 requires proof that the provider's negligence proximately caused injuries that otherwise wouldn't have occurred.

The statute goes further.

It expressly states that merely proving a loss of opportunity for a substantially better outcome isn't enough to satisfy New Hampshire's medical-injury burden of proof.

At the same time, the statute preserves claims when negligent medical care can be shown to have proximately caused the patient's ultimate harm, regardless of the patient's underlying chance of survival or recovery.

That means a sepsis case shouldn't simply argue that earlier treatment would have given the patient “a better chance.”

The medical expert analysis generally needs to address whether the alleged delay probably caused the ultimate injury being claimed.

For example, an expert may need to evaluate whether delayed treatment probably caused progression to septic shock, organ injury, amputation, permanent disability, or death that otherwise wouldn't have occurred.

What Injuries Can Severe Sepsis Cause?

Sepsis can cause life-threatening organ dysfunction, and septic shock represents an especially severe form of the condition.

Survivors may experience consequences such as:

• Acute kidney injury or a need for dialysis;
• Respiratory failure and mechanical ventilation;
• Cardiovascular complications;
• Tissue damage;
• Limb loss in severe cases;
• Weakness and significant physical deconditioning;
• Cognitive or psychological problems following critical illness; and
• Extended rehabilitation or additional medical care.

A person who survives but suffers lasting impairment may have damages involving medical expenses, future treatment, lost income, reduced earning capacity, and qualifying noneconomic losses.

When sepsis results in permanent disability, the future consequences may need to be evaluated similarly to other serious and catastrophic injuries.

What if Delayed Sepsis Treatment Caused the Patient's Death?

A fatal medical malpractice case requires both medical and wrongful-death analysis.

Under RSA 556:12, New Hampshire's wrongful-death action is brought through the deceased person's estate administrator.

Potential damages can include the decedent's conscious pain and suffering, reasonable expenses resulting from the injury, and losses related to the decedent's expected life and earning capacity.

The statute also permits additional damages for specified survivors, including loss of comfort, society, companionship, and qualifying familial relationships, subject to its requirements and limitations.

That is more precise than saying any surviving relative can simply file an individual wrongful-death lawsuit.

Families considering a claim can learn more about New Hampshire wrongful death cases and how the estate and surviving family members fit into the process.

Which Medical Records Matter Most in a Delayed Sepsis Case?

The treatment timeline can be one of the most important pieces of evidence.

Relevant records may include:

• Emergency department triage records;
• Vital-sign flowsheets;
• Physician and nursing notes;
• Medication administration records;
• Blood cultures and other laboratory results;
• Lactate results;
• Radiology studies;
• Hospital admission and discharge documentation;
• Electronic health record audit information;
• Telephone and patient-portal communications;
• EMS records;
• ICU records;
• Operative reports when source-control procedures were performed;
• Policies governing sepsis response or abnormal test results; and
• Records from later providers showing how the patient's condition progressed.

The records need to be read as a chronology rather than as isolated abnormalities.

A laboratory result that looks concerning in hindsight may have had a different significance when viewed with the rest of the patient's condition. Conversely, repeated worsening findings may indicate that a treatment team had accumulating evidence pointing toward a serious infection.

Why Are Medical Experts So Important?

New Hampshire makes expert testimony a central part of medical malpractice litigation.

Under RSA 507-E:2, competent expert testimony generally must establish the standard of reasonable professional practice, the defendant's departure from that standard, and medical causation.

Different parts of a sepsis case may require different expertise.

An emergency medicine physician may address the evaluation in the emergency department. An infectious disease specialist may address infection management. A critical-care physician may be relevant to septic shock and intensive-care treatment. Another specialist may be needed when the alleged delay occurred after surgery or involved a particular organ system.

The specialty should fit the actual conduct being challenged rather than simply the eventual diagnosis of sepsis.

Does New Hampshire Still Require a Medical Malpractice Screening Panel?

No.

Older discussions of New Hampshire medical malpractice law may refer to mandatory medical-injury screening panels under former RSA Chapter 519-B.

The legislature repealed that chapter effective July 1, 2023.

Medical malpractice cases still have demanding expert and evidentiary requirements, but the former statutory screening-panel procedure is no longer part of current New Hampshire law.

If litigation becomes necessary, the case instead proceeds through the ordinary civil litigation process, including pleadings, discovery, expert disclosures, depositions, motions, and potentially trial. Our overview of the New Hampshire personal injury lawsuit process explains many of those stages.

How Long Do You Have to File a New Hampshire Medical Malpractice Claim?

Under RSA 508:4, most personal actions generally must be brought within three years of the act or omission complained of.

New Hampshire also has a statutory discovery rule.

If the injury and its causal relationship to the provider's conduct weren't discovered and couldn't reasonably have been discovered when the act or omission occurred, the action generally must be commenced within three years from when the plaintiff discovers, or reasonably should have discovered, both the injury and its causal relationship to the conduct.

That doesn't mean learning later that an injury was more serious automatically restarts the clock.

Fatal cases can also involve additional estate and wrongful-death statutes, so a family shouldn't assume that the date of death automatically creates a new three-year period for every potential claim.

The deadline should be calculated from the specific medical history and the type of claim involved.

Our New Hampshire Medical Malpractice Lawyers Can Review the Treatment Timeline

A delayed sepsis case requires more than showing that treatment could have happened earlier.

At Burns, Bryant, Cox, Rockefeller & Durkin, P.A., we can obtain the medical records, reconstruct what clinicians knew at different points in the patient's care, and consult qualified medical experts about the standard of care and causation.

We represent clients from our Dover and Portsmouth offices and have served New Hampshire families since 1870. People in the Seacoast area can also learn more about our Portsmouth medical malpractice practice.

Our case results include a $250,000 medical malpractice settlement involving a radiologist who missed a large abdominal tumor and a separate $2.5 million medical negligence settlement involving neurological injuries to an infant. **Prior results don't guarantee a similar outcome.

If you believe delayed recognition or treatment of sepsis caused serious harm or the death of someone you love, contact us to discuss the circumstances. We offer a free consultation for personal injury and medical malpractice matters. When we accept a qualifying injury case on a contingency-fee basis, there is no upfront attorney fee, and the fee depends on a successful recovery under the written agreement.