Newborn Sepsis and Delayed Recognition in Oregon Law

When a very young baby develops a fever, medical guidelines lay out a careful approach to evaluating it. Neonatal sepsis can be serious. In one Italian area-based surveillance study covering 2016 to 2020, five of the 64 newborns with culture-proven early-onset sepsis caused by E. coli or group B strep died, and the outcomes the researchers tracked included brain lesions.¹ This article explains the medical guidance on fever in young infants, what research says about group B strep, and how a delay in recognizing sepsis can become a medical-malpractice claim in Oregon.

When a Fever in a Baby Is an Emergency

The American Academy of Pediatrics released a clinical practice guideline for the management of febrile infants in August 2021. According to a 2023 overview of that guideline, it applies to previously healthy, well-appearing infants born at 37 weeks' gestation or later who have had a temperature of at least 100.4 degrees Fahrenheit (38.0 degrees Celsius) in the previous 24 hours, at home or in a clinical setting. Infants younger than 8 days and those with diagnosed focal infections are excluded. The guideline provides algorithms for three age groups: 8 to 21 days, 22 to 28 days, and 29 to 60 days.²

The overview explains that the academy released the guideline to compile "nearly 40 years of research into a cohesive text that would provide a framework for the clinician in safely managing these patients in a variety of settings."²

How Group B Strep Leads to Newborn Sepsis

Group B streptococcus, often called group B strep or GBS, is one cause of newborn infection that researchers have studied closely. A 2017 systematic review describes GBS as "a leading infectious cause of neonatal morbidity and mortality," and reports that it remains a leading cause of neonatal sepsis in high-income countries despite declines due to antibiotics given during labor.³ The review divides infant GBS disease into two windows: early-onset disease (days 0 to 6 after birth) and late-onset disease (days 7 to 89). Among early-onset cases, 78% had sepsis and 16% had meningitis. Among late-onset cases, 53% had sepsis and 43% had meningitis.³

Many high-income countries try to prevent early-onset GBS disease by giving antibiotics during labor to women whose screening detects GBS colonization or who have clinical risk factors.³ The Italian study defines antenatal screening as GBS screening performed within 5 weeks before delivery, and adequate prophylaxis as penicillin, ampicillin, or cefazolin given at least 4 hours before delivery. It reports that widespread use of this prophylaxis has substantially reduced early-onset sepsis in high-income countries.¹

Prophylaxis has limits. The Italian study found that beta-lactam prophylaxis (most typically penicillin or ampicillin) is effective in preventing early-onset GBS sepsis but far less effective against early-onset sepsis caused by E. coli,¹ and the systematic review notes that it will not reduce late-onset GBS disease.³ In an early-onset case, whether the mother was screened, and whether a positive result led to antibiotics during labor, can be among the questions a review of the records looks at.

The Standard of Care Oregon Doctors Owe

Oregon measures a physician's conduct against a legal standard of care. Under ORS 677.095(1), 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

Applied to a febrile infant, the statute's question is what an ordinarily careful physician would have done in the same or similar circumstances: for a baby that age, with that history and those symptoms, and with the information available at the time.

When Delayed Recognition Becomes a Malpractice Claim

The statute measures the care that was given, not the outcome alone.⁴ In reviewing a delayed-recognition case, a lawyer looks at several questions. Among them are whether a physician's care met the standard in ORS 677.095(1), and whether the delay changed what happened to the baby.

In a delayed-recognition case, the questions about care might include whether a temperature was checked, whether blood, urine, or spinal-fluid cultures were ordered, whether the baby was discharged from triage without a full workup, or whether a mother's known group B strep status was acted on. Causation asks a different question: would earlier recognition and treatment have changed the outcome? Medical experts can compare what happened with what careful physicians would have done, and explain whether and how the delay worsened the child's injury.

These are fact-specific questions. Whether a particular delay crossed the line is something an Oregon attorney and qualified experts would need to review using the medical records.

Deadlines, and the Special Rules for Children

Oregon law puts time limits on when a claim can be filed, and infant cases have their own wrinkles. For injuries from medical treatment, ORS 12.110(4) requires a claim to be filed within two years from the date the injury "is first discovered or in the exercise of reasonable care should have been discovered."⁵ 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."⁶ The same subsection also requires the claim to be filed within five years from the date of the treatment, omission or operation. If fraud, deceit or misleading representation kept the action from being commenced within those five years, a two-year period runs from when the fraud, deceit or misleading representation is discovered or reasonably should have been discovered.⁵

Because the patient is a child, the clock works differently. ORS 12.160(1) tolls the statute of limitation while the injured person is younger than 18, and ORS 12.160(2) provides that the time may not be extended on that basis "for more than five years, or for more than one year after the person attains 18 years of age, whichever occurs first."⁷ That tolling reaches the two-year period but not the outer one: ORS 12.110(4) sets its five-year limit "notwithstanding the provisions of ORS 12.160," so minority does not push the five-year date back.⁵ A separate statute, ORS 12.117, does set a far longer deadline, but it applies only to claims based on child abuse, not to ordinary medical negligence.⁸

When a death is caused by a wrongful act or omission, ORS 30.020(1) sets the deadline for the wrongful-death action: "The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of: (a) Three years after the death of the decedent; or (b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110 (4), 12.115, … and 30.905."⁹ The three years run from discovery of the injury causing the death, not from the death itself. Three years after the death is an outer limit, and a repose period that applies to the act or omission can end the time sooner.

Different rules apply when a claim arises from an act or omission of a public body, or of its officer, employee or agent, within the scope of the Oregon Tort Claims Act (ORS 30.260 to 30.300). ORS 30.275 requires notice of claim, subject to exceptions listed in ORS 30.275(8). Notice must be given within one year after the alleged loss or injury for wrongful death, and within 180 days after the alleged loss or injury for all other claims, not counting a period of 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. Notice can be satisfied in four ways: formal notice of claim, actual notice of claim, commencing an action on the claim within the notice period, or payment of all or part of the claim by or on behalf of the public body. With listed exceptions, ORS 30.275(9) 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."¹⁰ These rules interact, and how they apply turns on the facts of each case.

Getting Answers

If your newborn or infant became seriously ill and you believe a fever or infection was recognized too late, you may have questions that a review of the medical records can help answer. An Oregon attorney can evaluate the timeline against the standard of care and the deadlines that apply to your child's 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. Escherichia coli Is Overtaking Group B Streptococcus in Early-Onset Neonatal Sepsis. https://pmc.ncbi.nlm.nih.gov/articles/PMC9607315/ ↩ ↩² ↩³

2. Evaluation and Management of Young Febrile Infants: An Overview of the New AAP Guideline. https://pubmed.ncbi.nlm.nih.gov/36854834/ ↩ ↩²

3. Infant Group B Streptococcal Disease Incidence and Serotypes Worldwide: Systematic Review and Meta-analyses. https://pmc.ncbi.nlm.nih.gov/articles/PMC5850457/ ↩ ↩² ↩³ ↩⁴

4. ORS 677.095 (Duty of care). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩ ↩²

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

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

7. ORS 12.160 (Suspension for minors and persons who have disabling mental condition). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩

8. ORS 12.117 (Actions based on child abuse). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩

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

10. ORS 30.275 (Notice of claim; time of notice; time of action). Oregon State Legislature. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩