Anesthesia Errors in Oregon: Failure to Intubate & Hypoxia

Anesthesia is one of the most carefully monitored phases of any surgery. When the system works, it is invisible — a patient is induced, maintained, and woken without ever knowing what happened. When something goes wrong, the consequences can be serious.

This article describes several categories of anesthesia errors that can support an Oregon medical malpractice claim, the legal standard, and the deadlines that govern.

What can go wrong during anesthesia

Anesthesia errors can be grouped into a handful of categories.

• Failure to intubate or ventilate. Claims in this category concern how the airway was planned and managed when placing the breathing tube, or ventilating the patient, proved difficult.
• Hypoxia and anoxia (oxygen deprivation). Claims in this category concern whether the patient's oxygen supply was maintained throughout the procedure.
• Anesthesia awareness. Claims in this category concern allegations that a patient was aware during surgery that was meant to be performed under general anesthesia.
• Dosing errors. Allegations of the wrong drug, the wrong concentration, the wrong rate, or a failure to account for the patient's other medications and conditions.
• Failure to monitor. The American Society of Anesthesiologists' Standards for Basic Anesthetic Monitoring provide: "During all anesthetics, the patient's oxygenation, ventilation, circulation and temperature shall be continually evaluated."¹ The standards define "continual" as "repeated regularly and frequently in steady rapid succession," and they call for temperature monitoring "when clinically significant changes in body temperature are intended, anticipated or suspected."¹ Lapses in monitoring — gaps in the electronic record, missed alarms, providers leaving the room — are among the fact patterns that can arise in anesthesia malpractice.
• Aspiration. Claims in this category concern stomach contents entering the airway, and how the patient's risk of that was assessed and managed before and during the anesthetic.

The standard of care for anesthesia providers

Under ORS 677.095(1), a physician licensed by the Oregon Medical Board — including an anesthesiologist — "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."² Subsection (2) sets a parallel standard for physician associates. The section does not name certified registered nurse anesthetists (CRNAs).

An expert reviewing an anesthesia case typically looks at the anesthesia record, the surgical record, the pre-operative assessment, the post-anesthesia care unit notes, and any rapid-response or code documentation. The review asks whether the choices made — induction agent, airway plan, dosing, monitoring, response to deterioration — met the applicable standard of care.

Causation in anesthesia injury cases

If a patient enters surgery healthy and emerges with a hypoxic brain injury, the anesthesia record may hold much of the answer on causation: how long was oxygen saturation below threshold, what was the end-tidal CO2 doing, how were the alarms responded to, and at what point was the airway re-secured.

That documentation cuts both ways — it can also exonerate a provider when the records show appropriate response within the standard. Interpreting that record is a clinical task, which is one reason expert review matters in these cases.

The two-year discovery rule and the five-year repose

ORS 12.110(4) requires a medical malpractice action to be commenced "within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."³ In Gaston v. Parsons, 318 Or 247 (1994), the Oregon Supreme Court held that "injury," as used in ORS 12.110(4), "consists of three elements: (1) harm; (2) causation; and (3) tortious conduct." The court held that the period "begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists." The court also said that "the plaintiff does not need to know to certainty that each particular element exists," while "a mere suspicion is insufficient to begin the statute of limitations to run."⁴ In anesthesia injury cases discovery can come early, but not automatically immediately: a family may learn of the hypoxic event in the recovery room while having no reason yet to suspect that the airway management fell below the standard.

The same statute imposes a five-year statute of repose: "notwithstanding the provisions of ORS 12.160," every such action "shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered."³ The five-year limit runs from the date of the treatment, omission or operation, not from discovery.

Public hospitals and OTCA notice

Some anesthesia claims are brought against a public body rather than a private provider, and those run through the Oregon Tort Claims Act. Subject to the Act's limitations, ORS 30.265(1) provides that every public body "is subject to civil action for its torts and those of its officers, employees and agents acting within the scope of their employment or duties".⁵ So the Act reaches care by a public body's own officers, employees and agents acting within that scope; whether a particular provider at a public hospital meets that description depends on the facts. Under ORS 30.275(2), notice of claim is due "within one year after the alleged loss or injury" for wrongful death and "within 180 days after the alleged loss or injury" for all other claims, not counting a period of up to 90 days during which the injured person is unable to give notice "because of the injury or because of minority, incompetency or other incapacity."⁶ Under ORS 30.275(3), the notice requirement can be satisfied by formal notice of claim (a written communication), by actual notice, by commencing an action on the claim within the notice period, or by payment of all or any part of the claim by or on behalf of the public body.⁶

The Act also sets its own deadline for filing suit. Subject to exceptions it lists, and "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," ORS 30.275(9) provides that such an action "shall be commenced within two years after the alleged loss or injury."⁶ For a claim against a public body, that ORS 30.275(9) period applies instead of ORS 12.110(4). The notice period is shorter than that two-year filing period.

What an anesthesia case looks like in practice

The work in an anesthesia malpractice case begins with the anesthesia record — the running timeline of vitals, gases, and interventions. That record sits next to the operative report, the pre-anesthetic evaluation, and the post-anesthetic care notes. An anesthesia expert reads the record and forms an opinion on whether the choices made were within the standard. From there, the case turns on causation (did the breach cause the injury) and damages (what is the lifetime cost of a hypoxic injury, and what is fair compensation for the loss of pre-injury life).

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. Standards for Basic Anesthetic Monitoring — American Society of Anesthesiologists. https://www.asahq.org/standards-and-practice-parameters/standards-for-basic-anesthetic-monitoring ↩ ↩²

2. ORS 677.095 — Duty of care. https://oregon.public.law/statutes/ors_677.095 ↩

3. ORS 12.110 — Actions for certain injuries to person not arising on contract. https://oregon.public.law/statutes/ors_12.110 ↩ ↩²

4. Gaston v. Parsons, 318 Or 247 (1994) (Caselaw Access Project). https://static.case.law/or/318/cases/0247-01.json ↩

5. ORS 30.265 — Scope of liability of public body, officers, employees and agents; liability in nuclear incident. https://oregon.public.law/statutes/ors_30.265 ↩

6. ORS 30.275 — Notice of claim; time of notice; time of action. https://oregon.public.law/statutes/ors_30.275 ↩ ↩² ↩³