Amputation After Delayed Sepsis Care: Proving Lost Chance

Some patients who develop sepsis survive it and still lose a finger, a foot, or a whole limb. Where that follows a delay in antibiotics or in controlling the source of the infection, showing the delay is only part of the case. The other part is causation: what the outcome would have been with timely antibiotics and timely source control. Oregon has a line of cases built around that question, and which part of it applies turns on whether the patient lived or died.

How sepsis can put a limb at risk

The Centers for Disease Control and Prevention describes sepsis as "the body's extreme response to an infection" and a life-threatening medical emergency. Without fast treatment, CDC states, "sepsis can quickly lead to tissue damage, organ failure, and death."¹

The path from sepsis to limb loss runs through blood supply. A 2024 review in the journal Medicine collected the reported cases of symmetrical peripheral gangrene caused by urinary-tract sepsis — a condition the authors call "a serious and rare complication" marked by impairment that appears symmetrically at the far ends of the limbs. The contributors they identified were disseminated intravascular coagulation, severe infection, depletion of the body's natural anticoagulants, low blood flow, heart dysfunction, cold, diabetes, urologic surgery and continuous renal replacement therapy. The review reports that severe depletion of the clotting regulators protein C and protein S has been predicted to contribute to thrombosis in the smallest blood vessels, and that in the cases it gathered, tissue death in the limbs appeared a median of about 2.6 days after blood pressure dropped or vasopressor drugs were started.² Vasopressors are the medicines used to raise blood pressure in shock.

How common limb loss is after sepsis is a separate question from how it happens, and the figures are worth stating plainly. CDC lists "[r]isk of amputations (loss of limb(s))" among the long-term effects some sepsis survivors have, and it introduces that list by noting that "[m]any people who survive sepsis recover completely and their lives return to normal."³ A population study using South Korea's national insurance data looked at 19,906 sepsis survivors and found that 163 of them — 0.8 percent — had undergone surgical limb amputation. The rate in that cohort was higher among survivors with diabetes or peripheral arterial disease, and among those who had received epinephrine or dopamine.⁴

What "timely" treatment is measured against

In Oregon the duty a physician owes is set by statute. ORS 677.095(1) provides that "[a] physician licensed to practice medicine or podiatry by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."⁵ Subsection (2) of the same section states a parallel duty for licensed physician associates.

The published clinical guidance describes what the treatment itself consists of. The 2021 Surviving Sepsis Campaign international guidelines recommend "administering antimicrobials immediately, ideally within 1 h of recognition" for adults with possible septic shock or a high likelihood of sepsis. A separate recommendation is for "rapidly identifying or excluding a specific anatomical diagnosis of infection that requires emergent source control and implementing any required source control intervention as soon as medically and logistically practical" — source control being, in the guidelines' description, measures such as draining an abscess, debriding infected necrotic tissue, or removing a potentially infected device.⁶ CDC's own summary of rapid, effective sepsis treatment lists giving appropriate treatment, including antibiotics, as soon as possible; maintaining blood flow to organs; and, sometimes, surgery to remove tissue damaged by the infection.¹

Why causation is the hard part

Smith v. Providence Health & Services, 361 Or 456, 393 P3d 1106 (2017), restated the elements a plaintiff must allege and prove in a professional negligence claim, quoting an earlier decision: "(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of duty and the harm."⁷

In a delayed-sepsis amputation case, the fourth element is the one that has to be built out of medical opinion: what earlier antibiotics and earlier source control would actually have done for this particular limb. A footnote in Smith draws the dividing line. A plaintiff able to allege that he had at least a 51 percent chance of recovery but for the malpractice would, the court explained, "have had the ability to prove a standard medical malpractice claim based on the ultimate poor medical outcome as the injury." The plaintiff in Smith could not make that allegation, and that is what made his a loss-of-chance claim instead.⁷

What Smith v. Providence decided

The patient in Smith survived. His claim was that negligent care cost him a 33 percent chance of recovering fully or nearly fully from a stroke, and the Oregon Supreme Court concluded "that a loss of a substantial chance of a better medical outcome can be a cognizable injury in a common-law claim of medical malpractice in Oregon."⁷

Three features of that decision are easy to misread.

First, Smith did not lower the burden of proof. The court was explicit that "when the lost chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant's negligence caused the plaintiff to lose the chance of a favorable medical outcome." What changed is the description of the injury, not the degree of certainty required.⁷

Second, the pleading requirement is specific. The court said that "a plaintiff must plead the percentage and quality of his or her loss of chance, which in turn must be based on the plaintiff's experts and relevant scientific evidence that meets the standard of reasonable medical probability." Applied to a limb, that calls for an expert willing to quantify the chance of saving it that the delay consumed, and to say what keeping it would have been worth.⁷

Third, "substantial" was left undefined. The court observed that some other states require the loss of a "substantial chance" and then stated that it "need not decide that issue in this case" because the alleged 33 percent chance was substantial whether or not substantiality is required. Smith therefore left the substantiality question open rather than fixing a percentage. On damages, the court described the approach most jurisdictions recognizing the theory have taken: a plaintiff whose chance of a favorable outcome was reduced from 33 percent to zero "could recover damages based on the unfavorable medical consequences suffered, but only to the possible extent of 33 percent of the damages resulting from the adverse medical outcome."⁷ The recovery is scaled to the chance that was lost, not to the full value of the amputation.

A surviving patient and a patient who dies are not in the same position

Smith is authority for a surviving patient's common-law claim. Where the patient dies and the claim is that the negligence caused the death, a different case governs. In Joshi v. Providence Health System of Oregon Corp., 342 Or 152, 149 P3d 1164 (2006), the plaintiff's expert could testify only that a missed stroke diagnosis had deprived the decedent of a 30 percent chance of survival. The Supreme Court affirmed a directed verdict for the defense, reasoning that "[a]lthough deprivation of a 30 percent chance of survival may constitute an injury, the injury that is compensable under ORS 30.020 is death."⁸ Smith did not overrule Joshi. It distinguished it, noting that "[t]he feature distinguishing Joshi from this case is the wrongful death statute, ORS 30.020, which was at the heart of that case."⁷

For a family reading this after an amputation, the point worth carrying away is that surviving changes which line of Oregon cases applies, and that under Smith the causation showing is quantified and rests on expert evidence meeting the standard of reasonable medical probability. Whether a particular delay cost a particular patient a substantial chance of keeping a limb is a medical question before it is a legal one, and it is answered from the records and the experts.

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at 971-317-6436 for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.

Footnotes

1. About Sepsis — Centers for Disease Control and Prevention. https://www.cdc.gov/sepsis/about/index.html ↩ ↩²

2. Symmetrical peripheral gangrene caused by urosepsis: Case reports and literature review. Medicine (2024). https://pmc.ncbi.nlm.nih.gov/articles/PMC11460895/ ↩

3. Managing Recovery from Sepsis — Centers for Disease Control and Prevention. https://www.cdc.gov/sepsis/living-with/index.html ↩

4. Incidence and associated risk factors for limb amputation among sepsis survivors in South Korea. Journal of Anesthesia (2021). https://pmc.ncbi.nlm.nih.gov/articles/PMC7538278/ ↩

5. ORS 677.095, Duty of care (ORS chapter 677 — Regulation of Medicine, Podiatry and Acupuncture). https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩

6. Surviving Sepsis Campaign: International Guidelines for Management of Sepsis and Septic Shock 2021. Intensive Care Medicine. https://pmc.ncbi.nlm.nih.gov/articles/PMC8486643/ ↩

7. Smith v. Providence Health & Services, 361 Or 456, 393 P3d 1106 (2017) — Oregon Judicial Department slip opinion. https://ojd.contentdm.oclc.org/digital/collection/p17027coll3/id/5926 ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶ ↩⁷

8. Joshi v. Providence Health System of Oregon Corp., 342 Or 152, 149 P3d 1164 (2006) — Oregon Judicial Department slip opinion. https://ojd.contentdm.oclc.org/digital/collection/p17027coll3/id/5051 ↩