Missed Sepsis Diagnosis in Oregon: When It's Malpractice

Sepsis is the body's extreme response to an infection. The Centers for Disease Control and Prevention (CDC) calls it a life-threatening medical emergency.¹ CDC guidance for health care providers says, "With your fast recognition and treatment, most patients survive."² CDC's patient page warns, "Without fast treatment, sepsis can quickly lead to tissue damage, organ failure, and death."³

This article explains how sepsis can be missed in Oregon hospitals and clinics, what harm can follow, and how Oregon law treats a medical-malpractice or wrongful-death claim based on a missed diagnosis. It is general information, not legal or medical advice about any specific case.

What sepsis is and why speed matters

The CDC explains that "Sepsis happens when an infection you already have triggers a chain reaction throughout your body." It says "almost any infection can lead to sepsis," and that infections that lead to sepsis most often start in the gastrointestinal tract, lung, skin, or urinary tract. The physical findings CDC lists for diagnosing sepsis include fever, increased heart rate, low blood pressure, and trouble breathing.³

The CDC lists six warning signs patients and clinicians should watch for:

• High heart rate or weak pulse
• Fever, shivering, or feeling very cold
• Confusion or disorientation
• Shortness of breath
• Extreme pain or discomfort
• Clammy or sweaty skin¹

The CDC's wording is that "A person with sepsis might have one or more of the following signs or symptoms," so a patient need not show all six.³

Questions a record review can ask in a missed-sepsis case

For a doctor, the "standard of care" is set by statute. ORS 677.095(1) provides that a physician licensed to practice medicine or podiatry 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."⁴ In a missed-sepsis case, a review of the medical records can ask questions like these.

1. Was a patient with warning signs sent home from the emergency department? CDC says "Healthcare providers should immediately evaluate and treat people who might have sepsis," and that providers "perform tests that check for signs of infection or organ damage," which might include blood cultures.³ A review asks whether the chart shows that infection was considered before discharge, and which tests were ordered.

2. Were abnormal vital signs acted on? Under "Common physical presentation," CDC lists fever, increased heart rate, and low blood pressure, and its clinical guidance says, "Follow your facility's policies and procedures for diagnosing and managing sepsis."² A review asks when abnormal readings first appear in the chart, what the facility's policy required, and what was done next.

3. Were antibiotics and other treatment delayed? CDC's clinical guidance says, "Start antibiotics as soon as possible in addition to other therapies appropriate for the patient."² Its patient page lists "Maintaining blood flow to organs" as part of rapid, effective sepsis treatment.³ A review asks when sepsis was first suspected and how much time passed before treatment began.

4. Were nurses' and family members' concerns passed on? For a suspected case, CDC tells clinicians to "Immediately alert the healthcare providers overseeing care of the patient if it is not you" and to "Check patient progress frequently."² A review asks whether a reported change reached the treating provider, and whether the patient was rechecked.

5. Was infection considered after surgery or childbirth? The CDC notes that "People with recent severe illness, surgery or hospitalization have a higher risk of infection, which can sometimes lead to sepsis" and that "women who are pregnant or postpartum are at higher risk for developing sepsis."⁵ A review asks whether a new fever, fast heart rate, or drop in blood pressure after a procedure or delivery was worked up for infection, or was attributed to something else without testing.

6. Were the patient's risk factors accounted for? CDC notes that "Most people who develop sepsis have at least one underlying medical condition or recent hospitalization." It also reports that "Nearly a quarter to a third of people with sepsis had a healthcare visit in the week before they were hospitalized."³ A review asks whether an earlier visit showed signs that went unaddressed.

The harm a missed sepsis diagnosis can cause

Without fast treatment, CDC says, sepsis can lead to tissue damage, organ failure, and death. It notes that "Sometimes surgery is required to remove tissue damaged by the infection." It also reports that "At least 1 in 5 adults and 1 in 10 children who develop sepsis die during hospitalization or are discharged to hospice."³

In a legal case, these losses are the "damages." A patient who survives may seek compensation for the harm the injury caused. If the patient dies, ORS 30.020(2) provides that damages may be awarded in a wrongful-death action in an amount that includes reasonable charges necessarily incurred for doctors', hospital, nursing and other medical services rendered for the decedent and for burial and memorial services; compensation for the decedent's disability, pain, suffering and loss of income between the injury and the death; compensation for pecuniary loss to the estate; compensation to the decedent's spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the "society, companionship and services of the decedent"; and, separately stated, any punitive damages the decedent would have been entitled to recover had the decedent lived.⁶

Oregon deadlines for a missed-sepsis claim

Oregon has strict filing deadlines.

Medical malpractice — 2 years from discovery, 5-year outer limit. Under ORS 12.110(4), a claim for injury from "medical, surgical or dental treatment, omission or operation" must be filed within two years from the date the injury is first discovered or reasonably should have been discovered.⁷ 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."⁸ Notwithstanding the provisions of ORS 12.160, every such action must be commenced within five years from the date of the treatment, omission or operation. If no action was commenced within five years because of fraud, deceit or misleading representation, the action may be commenced within two years after that conduct is discovered or in the exercise of reasonable care should have been discovered.⁷

Wrongful death — 3 years, and sometimes less. If a missed sepsis diagnosis caused the patient's death, ORS 30.020(1) allows the personal representative of the decedent to bring a wrongful-death action. 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 in a missed-sepsis death can arrive before three years have passed since the death.⁶

Public hospitals and clinics — notice of claim, and the Act's own filing period. Whether a hospital is inside the Oregon Tort Claims Act is a statutory question. Oregon Health & Science University is subject to the Tort Claims Act, but it does not get there through the Act's general definition of a public body. The Act's definition in ORS 30.260(4) includes "A public body as defined in ORS 174.109,"⁹ and a companion provision in ORS chapter 174 states that none of the general-definition terms there, which include "public body," "includes the Oregon Health and Science University," among other entities it names.¹⁰ ORS 353.100(1) is the provision that applies the Act to the university, and it does so "under the same terms as they apply to public bodies other than the state."¹¹ The notice requirement in ORS 30.275(1) reaches an action arising from any 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 it also covers a clinician who is an officer, employee or agent of the public body. Under ORS 30.275(2), notice of claim must be given within one year for wrongful death and within 180 days for all other claims, not counting up to 90 days during which the injured person is unable to give notice because of the injury, minority, incompetency or other incapacity, and ORS 30.275(3) provides that commencing an action within that period is one of the ways the requirement is satisfied. The Act also supplies its own filing period: ORS 30.275(9) provides that, notwithstanding any other provision of ORS chapter 12, an action within the scope of ORS 30.260 to 30.300 must be commenced within two years after the alleged loss or injury, subject to the exceptions that subsection lists.⁹

The five-year repose and the three-years-after-death bar run from fixed dates — the treatment or omission, and the death — whether or not anyone has told the family what happened, except that, for the five-year repose, ORS 12.110(4) allows more time where fraud, deceit or misleading representation kept an action from being filed within five years; the three-years-after-death bar in ORS 30.020(1)(a) contains no such exception.⁷⁶

When to talk to an Oregon medical-malpractice attorney

Not every bad outcome from sepsis is malpractice. What a lawyer looks at is whether the care departed from the standard of care and whether that departure caused the harm that followed.

If you or a loved one suffered serious injury or death after what may have been a missed or delayed sepsis diagnosis in Oregon, an attorney can request the medical records, work with medical experts, and evaluate whether the deadlines under ORS 12.110, ORS 30.020, or ORS 30.275 apply to your situation.

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. Sepsis Signs and Symptoms. Centers for Disease Control and Prevention. https://www.cdc.gov/sepsis/communication-resources/gaos-signs-symptoms.html ↩ ↩²

2. Caring for Patients with Sepsis. Centers for Disease Control and Prevention. https://www.cdc.gov/sepsis/hcp/clinical-care/index.html ↩ ↩² ↩³ ↩⁴

3. About Sepsis. Centers for Disease Control and Prevention. https://www.cdc.gov/sepsis/about/index.html ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶ ↩⁷

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

5. Risk Factors for Sepsis. Centers for Disease Control and Prevention. https://www.cdc.gov/sepsis/risk-factors/index.html ↩

6. ORS 30.020 (Action for wrongful death; when commenced; damages). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩² ↩³

7. ORS 12.110 (ORS chapter 12 — limitations of actions). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩ ↩² ↩³

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

9. ORS 30.260 to 30.300 (Oregon Tort Claims Act — definitions, notice of claim, time of action). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩²

10. ORS chapter 174 (Construction of Statutes; General Definitions). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors174.html ↩

11. ORS 353.100 (Applicability of certain laws to university). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors353.html ↩