When Failure to Refer for Colonoscopy Is Malpractice in Oregon

In the United States, 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 lists these preferred screening options:²

• Stool-based tests: highly sensitive fecal immunochemical test (FIT) every year, highly sensitive guaiac-based fecal occult blood test (gFOBT) every year, multi-targeted stool DNA (mt-sDNA) test every three years, or multi-targeted stool RNA (mt-sRNA) test every three years.
• Visual exams: colonoscopy every ten years, CT colonography every five years, or flexible sigmoidoscopy every five years.

ACS lists blood-based tests separately and describes them as "not preferred screening options at this time."² People at increased or high risk, including people with a strong family history of colorectal cancer or certain types of polyps, "might need to start colorectal cancer screening before age 45, be screened more often, and/or get specific tests."²

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

The screening schedule above is ACS's recommendation for people at average risk.² ACS separately lists common signs and symptoms of colorectal cancer, including:³

• Rectal bleeding with bright red blood, or blood in the stool, which might make the stool look dark brown or black.
• Anemia. ACS explains that over time, blood loss from a colorectal cancer can lead to low red blood cell counts (anemia), and that sometimes the first sign of the cancer is a blood test showing a low red blood cell count.
• A change in bowel habits — such as diarrhea, constipation, or narrowing of the stool — that lasts for more than a few days.
• Unintended weight loss and cramping or abdominal (belly) pain.

ACS notes that many of these symptoms can be caused by conditions other than colorectal cancer, such as infection, hemorrhoids, or irritable bowel syndrome, and that it is important to see a doctor right away so the cause can be found and treated, if needed.³ 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.³
• 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 on the ground that they are too young for colon cancer, even though ACS reports rising incidence rates in people younger than 50.¹

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

Two practical points are central in delayed colorectal-cancer cases:

• Expert testimony is usually required. In Getchell v. Mansfield, 260 Or 174 (1971), the Oregon Supreme Court stated: "In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community." The court added that "if the jury is capable of deciding what is reasonable conduct without assistance from an expert medical witness no expert testimony is necessary to establish the standard of care."⁴
• Causation is proven case by case. One way to show causation is that, to a reasonable probability, earlier diagnosis would have produced a better outcome.⁵ In Smith v. Providence Health & Services, 361 Or 456 (2017), the Oregon Supreme Court also held that "a medical negligence claim based on a loss-of-chance theory of injury in the circumstances presented is cognizable under Oregon common law." The court concluded "that a loss of a substantial chance of a better medical outcome can be a cognizable injury" in a common-law medical-malpractice claim.⁵ Smith was brought by a surviving patient, and the court distinguished claims under Oregon's wrongful-death statute, ORS 30.020.⁵

The two-year filing period 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.⁶ 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."⁷ The court emphasized "that this is an objective test" and that "Actual knowledge that each element is present is not required."⁷ So in a colorectal case, the clock can start before the patient actually learns that a prior bleeding episode, the prior anemia, or a 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.⁶ 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 — or did the delay cost the patient a substantial chance of a better outcome?
• 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. These questions are typically answered by reviewing the records with gastroenterology and oncology 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. 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, American Cancer Society Guideline for Colorectal Cancer Screening. https://www.cancer.org/cancer/types/colon-rectal-cancer/detection-diagnosis-staging/acs-recommendations.html ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶

3. American Cancer Society, Colorectal Cancer Signs and Symptoms. https://www.cancer.org/cancer/types/colon-rectal-cancer/detection-diagnosis-staging/signs-and-symptoms.html ↩ ↩² ↩³

4. Getchell v. Mansfield, 260 Or 174 (1971). https://static.case.law/or/260/cases/0174-01.json ↩

5. Smith v. Providence Health & Services, 361 Or 456 (2017). https://ojd.contentdm.oclc.org/digital/collection/p17027coll3/id/5926 ↩ ↩² ↩³

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

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