Pancreatic Cancer Misdiagnosis and Oregon Malpractice Law

Pancreatic cancer can be hard to find early. Its warning signs can look like everyday problems, and they often have other causes.¹ This article looks at those symptoms, how Oregon's standard of care applies to decisions about imaging and follow-up, and how a delayed diagnosis fits into an Oregon medical-malpractice claim.

Symptoms that are easy to blame on something else

The American Cancer Society lists several warning signs of pancreatic cancer. They include jaundice (a yellowing of the skin and eyes), belly or back pain, unintended weight loss, poor appetite, nausea, dark urine, and new-onset diabetes or blood sugar changes.¹

Several of these more often have causes other than pancreatic cancer. The Society notes that pancreatic cancer is "not the most common cause of belly or back pain," and that these symptoms are "most often caused by something other than pancreatic cancer."¹ Early tumors also often cause no symptoms at all. As the Society puts it, "By the time they do cause symptoms, they have often grown very large or already spread outside the pancreas."¹

New-onset diabetes is one sign researchers are studying closely. According to the National Cancer Institute, about 1 in 4 people diagnosed with pancreatic cancer had been diagnosed with diabetes earlier.² In rare cases, diabetes may actually be caused by a tumor in the pancreas.² Researchers point to a pattern of older age at diabetes onset, a fast rise in blood sugar, and unexpected weight loss as clues that new diabetes could be linked to the pancreas.²

When the standard of care may call for imaging or referral

Oregon law sets the level of care a physician owes a patient. 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."³ This is what lawyers call the standard of care.

Whether a delay in finding pancreatic cancer falls below that standard depends on the facts. The measure is what ordinarily careful physicians would have done in the same or similar circumstances.³ The medical picture is not simple. The National Cancer Institute reports that "Sending every person with new-onset diabetes to get imaging tests of the pancreas would result in too many unnecessary follow-up surgical procedures—when abnormalities seen on scans turn out not to be cancer—potentially doing more harm than good," as a physician at MD Anderson explained.² One study was designed to test whether referring people for a CT scan of the abdomen based on a high score on a risk tool called ENDPAC can find early-stage pancreatic cancer while limiting unnecessary follow-up procedures.²

Why a delay in diagnosis matters

Survival figures for pancreatic cancer differ sharply by stage. The American Cancer Society reports a five-year relative survival rate of about 44% when the cancer is still localized, 17% once it has spread to nearby areas (regional), and 3% once it has spread to distant parts of the body.⁴ Across all stages, the figure is about 13%.⁴ The Society notes that these numbers "apply only to the stage of the cancer when it is first diagnosed."⁴

The National Cancer Institute describes ongoing research into ways "to detect pancreatic cancer early, when treatments may be more effective."²

How Oregon law treats a delayed-diagnosis claim

Oregon sets deadlines for medical-malpractice claims. A medical-malpractice action must be filed "within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."⁵ This is the discovery rule. 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

There is also an outside limit. ORS 12.110(4) continues: "However, notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered."⁵ Lawyers call this five-year backstop a statute of repose.⁷

These deadlines turn on specific dates and facts.

When a delay leads to a wrongful-death claim

Sometimes a delayed diagnosis is discovered only after the patient has died. Oregon allows a wrongful-death claim when the death was caused by the wrongful act or omission of another. The claim is brought by the personal representative of the decedent, for the benefit of the decedent's surviving spouse, children, parents and certain other people the statute lists, and only "if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission."⁷

Oregon gives a wrongful-death claim its own deadline. ORS 30.020(1) provides: "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."⁷

There is also an outer limit, and it is easy to misread. The statute continues: "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, 12.135 … and 30.905."⁷ In a missed-diagnosis death, that matters: if more than five years have passed since the treatment in question, the malpractice repose can close the window before the three-years-after-death date arrives.

Whether any of these rules apply to a particular situation depends on the details. An Oregon attorney can review the medical records and the timeline to explain how the law fits the facts.

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. Signs and Symptoms of Pancreatic Cancer. https://www.cancer.org/cancer/types/pancreatic-cancer/detection-diagnosis-staging/signs-and-symptoms.html ↩ ↩² ↩³ ↩⁴

2. New-Onset Diabetes: An Early Sign of Pancreatic Cancer? https://www.cancer.gov/news-events/cancer-currents-blog/2021/pancreatic-cancer-diabetes-early-detection ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶

3. ORS 677.095. https://oregon.public.law/statutes/ors_677.095 ↩ ↩²

4. Survival Rates for Pancreatic Cancer. https://www.cancer.org/cancer/types/pancreatic-cancer/detection-diagnosis-staging/survival-rates.html ↩ ↩² ↩³

5. ORS 12.110. https://oregon.public.law/statutes/ors_12.110 ↩ ↩²

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

7. ORS 30.020. https://oregon.public.law/statutes/ors_30.020 ↩ ↩² ↩³ ↩⁴