Missed Heart Attack in the ER: Oregon Malpractice Basics

A heart attack that is not recognized in the emergency room can have lasting consequences for a patient and a family, including permanent heart damage or a death that leads to a wrongful-death claim. This post explains, in plain English, how Oregon medical-malpractice law looks at these cases — including symptoms other than chest pain, the standard of care Oregon law applies, and the deadlines that apply.

Why heart attacks get missed in the ER

Heart-attack symptoms are not always limited to chest pain.

According to the Centers for Disease Control and Prevention (CDC), heart-attack symptoms in women can include upper back or neck pain, indigestion, heartburn, nausea or vomiting, extreme fatigue, dizziness, and shortness of breath, in addition to chest discomfort.¹

When an ER record settles on a non-cardiac explanation — anxiety, acid reflux, muscle strain, a "panic attack" — an attorney reviewing the case will want to know what other possibilities were considered, and when, and why they were ruled out.

Common clinical failures behind a missed-MI claim

Not every missed diagnosis is malpractice. Oregon law focuses on whether the provider met the standard of care. In an emergency department, an attorney investigating a possible missed heart attack may look at questions such as:

• History and risk assessment. Did the ER ask about diabetes, prior cardiac events, family history, smoking, blood pressure, and cholesterol? Does the chart record any chest-pain risk score, and how was it calculated?
• Troponin testing. Troponin is a protein found in heart-muscle cells. According to MedlinePlus, from the National Library of Medicine, when heart muscle is damaged, troponin leaks into the bloodstream and blood levels rise.² The questions here are when each troponin sample was drawn compared with when symptoms began, whether the test was repeated, and at what intervals.
• Electrocardiograms. According to MedlinePlus, an electrocardiogram (ECG or EKG) records the electrical signals the heart makes when it beats.³ How many ECGs were done, at what times, and how did each tracing compare with the one before it?
• Disposition. Was the patient admitted for observation, seen by cardiology, or sent home? What does the record say about the reasons for that decision, given the patient's symptoms and risk factors?
• Discharge instructions. If the patient was discharged, what did the written instructions say about which symptoms should prompt a return to the ER?

None of these facts alone proves malpractice. Whether a provider's decisions fell below the standard of care depends on the medical records and the specific presentation, reviewed against the legal standard described below.

What Oregon law requires: the standard of care

Under ORS 677.095, a physician licensed 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." Physician associates are held to the same kind of standard for their own profession under the next subsection of the same statute.⁴

In general terms, a missed heart attack may give rise to a medical-malpractice claim in Oregon if the patient or family can show that the ER provider's care fell below that standard and that the failure caused additional harm — for example, worse heart damage, cardiac arrest, or death — beyond what would have happened with proper care.

Under Rogers v. Meridian Park Hospital, 307 Or 612 (1989), the Oregon Supreme Court held that an "error-of-judgment" instruction is unduly confusing because it obscures the fact that a defendant's liability for negligence turns on the exercise of reasonable care and not on the exercise of judgment.⁵

Deadlines for filing a claim

Oregon has strict deadlines. Several can matter in missed-heart-attack cases.

Medical malpractice — two years from discovery. Under ORS 12.110(4), an action for injuries "arising from any medical, surgical or dental treatment, omission or operation" must be commenced within two years from the date 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

Five-year statute of repose. ORS 12.110(4) also states that every such action must be commenced within five years from the date of the treatment, omission, or operation — unless there is fraud, deceit, or misleading representation, in which case a different rule applies.⁶

Wrongful death — three years, and sometimes less. If a missed heart attack leads to death, ORS 30.020(1) sets a separate rule. The personal representative of the decedent may bring an action, and it must be commenced within three years after the injury causing the death is discovered or reasonably should have been discovered. The same subsection then bars the action after the earliest of two outer limits: three years after the death of the decedent, or the longest applicable statute of ultimate repose — which the statute lists as including ORS 12.110(4). Because that five-year repose runs from the treatment or omission rather than from the death, the deadline can arrive before three years have passed since the death.⁸

Public hospitals and OHSU. If the ER is operated by a public body — for example, OHSU or a county hospital — the Oregon Tort Claims Act adds a notice requirement. That requirement is not general. ORS 30.275(1) applies it to actions arising from an act or omission of a public body, or of an officer, employee or agent of a public body, within the scope of ORS 30.260 to 30.300 — so an ordinary claim against a private hospital carries no tort-claims notice deadline. "Ordinary" is doing work there: subsection (1) reaches an officer, employee or agent of a public body as well, and whether a particular facility is inside the Act is a question the statutes answer rather than one the hospital's name answers. It is worth establishing early rather than assuming it. Where it does apply, the period splits by claim type: ORS 30.275(2)(a) gives one year for wrongful death, and (2)(b) gives 180 days for other claims, not counting 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. Under ORS 30.275(3), the requirement can be satisfied by formal notice, by actual notice, by commencing the action within those periods, or by the public body's payment of all or part of the claim.⁹ Missing this notice can end a claim before it starts.

The Act also sets its own filing deadline. Subject to 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," such an action "shall be commenced within two years after the alleged loss or injury."⁹ Subject to those exceptions, for a claim within the Act that two-year period applies in place of the ORS 12.110(4) and ORS 30.020(1) periods described above, including for wrongful death.

What a lawyer typically evaluates

An Oregon attorney reviewing a possible missed-heart-attack case usually looks at the full ER record — vitals, triage notes, every ECG tracing, all troponin values with times, physician and nursing notes, imaging, discharge instructions — plus prior primary-care and cardiology records. The attorney may also ask a physician to review the timeline.

Whether any particular case meets the standard for a claim depends on facts that only a careful review can answer. If you are worried about care a family member received in an Oregon emergency room, an attorney can walk through the records with you and explain the options.

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 Women and Heart Disease | Heart Disease | CDC. https://www.cdc.gov/heart-disease/about/women-and-heart-disease.html ↩

2. Troponin Test. MedlinePlus, National Library of Medicine. https://medlineplus.gov/lab-tests/troponin-test/ ↩

3. Electrocardiogram. MedlinePlus, National Library of Medicine. https://medlineplus.gov/lab-tests/electrocardiogram/ ↩

4. ORS 677.095 (Duty of care). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩

5. ORS 677.095, Notes of Decisions (Rogers v. Meridian Park Hospital, 307 Or 612, 772 P2d 929 (1989)). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ano677.html ↩

6. ORS 12.110 – Actions for certain injuries to person; professional malpractice. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩ ↩²

7. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994). Caselaw Access Project. https://static.case.law/or/318/cases/0247-01.json ↩

8. ORS 30.020 (Action for wrongful death). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩

9. ORS 30.275 (Notice of claim). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩²