Birth Injury in Oregon: Failure to Perform a Timely C-Section

Labor and delivery can involve complications such as fetal distress, prolonged labor, shoulder dystocia, or cord compression. When one arises, the question in a later malpractice claim is whether the obstetric team recognized the problem and responded as the standard of care required — including by moving to a cesarean delivery when one was indicated.

Claims of this kind can involve injuries to the baby, such as hypoxic-ischemic encephalopathy, cerebral palsy, or brachial-plexus injury, or to the mother, such as postpartum hemorrhage. This article describes when a birth-injury claim can be brought in Oregon, what the legal standard requires, and the deadlines that govern.

What goes wrong in delayed-C-section cases

Fact patterns in Oregon birth-injury malpractice claims can involve one or more of the following:

• Fetal monitoring failures. A claim may allege a failure to recognize a concerning tracing, or a failure to escalate when one persists.
• Failure to call for surgical delivery in time. Once a non-reassuring strip is recognized, the question is whether the obstetric team moved promptly to operative delivery. A claim may focus on delay in mobilizing the operating-room team, in obtaining anesthesia, or in physician decision-making.
• Shoulder dystocia mismanagement. A claim may allege that a shoulder dystocia was not managed within the standard of care and that a brachial-plexus injury resulted.
• Maternal complications. Claims can also involve an alleged failure to recognize and respond to postpartum hemorrhage, preeclampsia, or maternal sepsis. These claims follow the same Oregon malpractice framework as claims for injuries to the baby.

The standard of care for obstetric care

Under ORS 677.095, an Oregon physician — including an obstetrician — 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."¹

In a birth-injury case, expert review can span several specialties. A maternal-fetal-medicine specialist or general obstetrician may review the fetal monitoring strip, the labor record, the delivery note, and any anesthesia record. A neonatologist may address the resuscitation and the early neonatal course. A pediatric neurologist or developmental pediatrician may address the long-term diagnosis (cerebral palsy, hypoxic-ischemic encephalopathy, developmental delay) and its connection to the perinatal events.

Causation in birth-injury cases

Causation in a birth-injury case is a medical question as well as a legal one. A defendant may contend that the injury did not result from events during labor and delivery — pointing to some other cause, or arguing that the timing of events on the monitoring strip does not match the timing of the injury. Records that can bear on that dispute include the placental pathology, cord-blood gas results, neonatal imaging, and the monitoring strip itself, read against a timeline of the labor and delivery.

Limitations and the discovery rule

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."² 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."³ The court added that the plaintiff "does not need to know to certainty that each particular element exists."³ In a birth-injury case, a family may learn of the harm within hours or days — that the baby suffered a hypoxic event, a brachial-plexus injury, or required NICU care. Under Gaston, knowing of the harm is not the whole test: the two-year period begins only when a reasonable person would also be aware of a substantial possibility of causation and tortious conduct.

A diagnosis of cerebral palsy, developmental delay, or another long-term condition may come later. When the two-year period began in a given case depends on the specific facts, measured against the Gaston test.

The same subsection imposes an outer limit: "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 …"² If no action has been commenced within five years "because of fraud, deceit or misleading representation," the statute allows an action "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."²

ORS 12.160 separately tolls the limitation period for many actions, including those under ORS 12.110, while a person who was younger than 18 when the cause of action accrued remains under 18. That extension is limited: "The time for commencing an action may not be extended under subsection (1) of this section for more than five years, or for more than one year after the person attains 18 years of age, whichever occurs first."⁴ And because the five-year period in ORS 12.110(4) applies "notwithstanding the provisions of ORS 12.160," minority tolling under ORS 12.160 does not extend that five-year outer limit for a birth-injury claim.

Claims against public bodies are governed by a separate filing rule. Subject to three exceptions listed in ORS 30.275(9), that subsection provides that, "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury."⁵ Separate notice requirements also apply, as described below.

Public hospitals and OTCA notice

Where a hospital is operated by a public body, the Oregon Tort Claims Act's notice and filing rules described here apply. Under ORS 30.275(2), notice of claim must be given "within 180 days after the alleged loss or injury" for claims other than wrongful death, and "within one year after the alleged loss or injury" for wrongful death.⁵ Those periods do not include "the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity".⁵ Under ORS 30.275(3), the notice requirement is satisfied by formal notice of claim (a written communication), actual notice of claim, commencement of an action on the claim within the applicable period, or payment of all or any part of the claim by or on behalf of the public body.⁵ Missing the OTCA notice deadline can extinguish an otherwise valid Oregon birth-injury claim against a public defendant.

What a birth-injury case looks like in practice

Review of a birth-injury claim can involve the entire prenatal, intrapartum, and immediate postnatal record — the fetal monitoring strip, the nursing notes, the operative report (if any), the placental pathology, the cord gases, the NICU course, the neuroimaging. Experts may review the records and form opinions on whether the standard of care was met and whether a breach caused the injury. A parent's claim for the child's medical expenses is addressed in ORS 12.160(5): if a child's cause of action is tolled under subsection (1), "a cause of action for recovery of damages for medical expenses incurred by a parent, guardian or conservator of the child is tolled for the same period of time as the child's cause of action if the medical expenses resulted from the same wrongful conduct that is the basis of the child's cause of action."⁴

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

2. ORS 12.110 — Actions for certain injuries to person not arising on contract. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩ ↩² ↩³

3. Gaston v. Parsons, 318 Or 247 (1994). https://static.case.law/or/318/cases/0247-01.json ↩ ↩²

4. ORS 12.160 — Suspension for minors and persons who have disabling mental condition. https://oregon.public.law/statutes/ors_12.160 ↩ ↩²

5. ORS 30.275 — Notice of claim; time of notice; time of action. https://oregon.public.law/statutes/ors_30.275 ↩ ↩² ↩³ ↩⁴