When Failure to Refer for Colonoscopy Is Malpractice in Oregon

Colorectal cancer is the third-leading cause of cancer-related deaths in men and the fourth leading cause in women — and the second most common cause of cancer deaths when men and women are combined.¹ What makes Oregon families ask harder questions about delayed diagnoses is the trend: ACS reports that in adults under 55, colorectal-cancer death rates have been increasing about 1 percent per year since the mid-2000s, and in adults under 50, incidence rates have increased by 2.9 percent per year from 2013 to 2022.¹

When a patient turns out to have colorectal cancer that should have been caught earlier — at screening, after rectal bleeding, or after an unexplained drop in hemoglobin — the question becomes whether the delay falls within Oregon's medical-malpractice framework. This post explains current screening guidance, the symptoms that should change the standard-of-care analysis, and how Oregon's discovery rule under ORS 12.110(4) affects the deadline.

Current screening guidance

The American Cancer Society recommends that average-risk adults start regular screening at age 45.² ACS recognizes several screening pathways:²

• Stool-based tests: highly sensitive fecal immunochemical test (FIT) annually, or multi-targeted stool DNA test with FIT every three years.
• Visual exams: colonoscopy every ten years, CT colonography every five years, or flexible sigmoidoscopy every five years.

ACS emphasizes that the most important thing is to get screened, no matter which test the patient chooses.² In a malpractice analysis, the question is generally not whether the patient picked the "right" test but whether any screening was offered, performed, and followed up — and whether positive or abnormal results led to the necessary diagnostic colonoscopy.

Symptoms that change the analysis

Screening guidelines apply to people with no symptoms. Once a patient develops symptoms that could reflect colorectal cancer, the workup is no longer a screening question — it is a diagnostic one. The clinical red flags that typically prompt a diagnostic colonoscopy include:

• Rectal bleeding at any age, including bright red blood per rectum, blood mixed in stool, or melena (dark, tarry stools).
• Iron-deficiency anemia in adults — especially men of any age and post-menopausal women — where colorectal cancer is among the conditions a clinician must rule out.
• Persistent change in bowel habits — new constipation, diarrhea, or narrowing of the stool that lasts more than a few weeks.
• Unexplained weight loss or persistent abdominal pain, especially when paired with the symptoms above.
• Strong family history of colorectal cancer or polyposis syndromes that lower the appropriate age for first colonoscopy.

In a delayed-diagnosis claim, the question is whether the primary-care physician, gastroenterologist, or other treating clinician investigated those symptoms — or treated them as something benign without ruling out malignancy.

When failure to refer or work up may breach the standard of care

Common patterns that can support a colorectal-cancer malpractice claim include:

• Rectal bleeding attributed to hemorrhoids without examination or imaging. A patient reports blood in the stool; the diagnosis is "hemorrhoids" without rectal exam, anoscopy, or referral, and the cancer continues to grow.
• Iron-deficiency anemia treated with iron supplements alone. Adult-onset anemia with no obvious source is treated with iron without endoscopic evaluation. Blood loss from a colorectal tumor can be the underlying cause.
• Positive FIT or stool DNA test not followed up. A screening test comes back abnormal; no diagnostic colonoscopy is ordered, scheduled, or performed.
• Polypectomy without follow-up surveillance. A polyp is removed but the recommended surveillance interval is missed, and a metachronous cancer develops in the gap.
• Symptoms in patients under 45 dismissed because of age. Younger adults with rectal bleeding or weight loss are reassured because they are "too young" for colon cancer, despite the rising incidence in that age group.¹

Whether any pattern falls below the standard of care depends on the specific facts and on testimony from qualified gastroenterology, primary-care, and oncology experts.

How Oregon law applies

Oregon medical-malpractice claims follow the four-element negligence framework: duty, breach, causation, and damages. Two practical points are central in delayed colorectal-cancer cases:

• Expert testimony is required. Oregon courts require qualified medical experts to establish what the standard of care was at each clinical visit and how it was breached. A bad outcome alone does not prove a claim.
• Causation is proven case by case. The plaintiff must show that earlier diagnosis would more likely than not have produced a better outcome — for example, by allowing endoscopic resection of an early-stage tumor instead of major surgery, by avoiding metastatic spread, or by improving long-term survival.

The deadline for filing a claim runs from discovery, not from the missed visit. Under ORS 12.110(4), a medical-malpractice action must 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 colorectal cases, that usually means the date the patient learns the prior bleeding episode, the prior anemia, or the prior abnormal test should have triggered a colonoscopy.

ORS 12.110(4) also imposes a five-year statute of repose: with limited exceptions for fraud, deceit, or misleading representation, the action must be filed within five years of the treatment, omission, or operation regardless of when the injury was discovered.³ When the missed referral happened many years ago, that outer limit can bar an otherwise meritorious claim.

What an attorney evaluates

When an Oregon attorney reviews a possible delayed colorectal-cancer claim, the questions are usually:

• Did the patient have screening-eligible status, and was screening offered, performed, and followed up appropriately?
• Were any symptoms — rectal bleeding, iron-deficiency anemia, change in bowel habits, weight loss — investigated, or treated as something else without a workup?
• Did an abnormal stool test, sigmoidoscopy finding, or imaging study lead to a diagnostic colonoscopy?
• Would earlier diagnosis more likely than not have changed the staging, treatment options, or prognosis?
• Are the deadlines under ORS 12.110(4) — both the two-year discovery clock and the five-year outer limit — still open?

These questions are evidence-driven. Reviewing the records with experienced gastroenterology and oncology experts is the only honest way to answer them.

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. American Cancer Society, Key Statistics for Colorectal Cancer. https://www.cancer.org/cancer/types/colon-rectal-cancer/about/key-statistics.html ↩ ↩² ↩³

2. American Cancer Society, ACS Recommendations for Colorectal Cancer Early Detection. https://www.cancer.org/cancer/types/colon-rectal-cancer/detection-diagnosis-staging/acs-recommendations.html ↩ ↩² ↩³

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