Stroke Misdiagnosed in an Oregon ER: When It's Malpractice

Stroke is one of the most time-sensitive emergencies in modern medicine, and it is sometimes missed in the emergency room. A 2014 study of linked emergency-department and hospital records from nine US states estimated "15,000–165,000 misdiagnosed cerebrovascular events annually in US EDs, disproportionately presenting with headache or dizziness."¹ Symptoms may be attributed to a benign headache or dizziness, and the patient is sent home with a different diagnosis. Later — sometimes days later, after a return visit — imaging reveals what was happening. By then, the window for clot-busting treatment may have closed.

This article describes when a missed or delayed stroke diagnosis can support a medical malpractice claim in Oregon, the deadlines that apply, and what the legal standard actually requires.

Why stroke gets missed

Not every stroke presents in the same way. In the same 2014 study, missed ischemic strokes and transient ischemic attacks were linked to headache or dizziness diagnoses at the first visit. The study also found that the odds of a probable misdiagnosis were lower among men and among older patients, compared with patients aged 18 to 44; its authors concluded that physicians evaluating headache or dizziness "should be particularly attuned to the possibility of stroke in younger, female, and non-White patients."¹ The study drew on data from nine states, and its authors noted that its findings might not be generalizable to other settings.

The National Heart, Lung, and Blood Institute (NHLBI) describes tPA, a clot-busting drug injected into a vein, as medicine that "must be given within 3 hours after stroke symptoms start." It also states that a provider may give tPA up to 4.5 hours after symptoms begin, and that some people who may still have large parts of the brain without major damage may benefit even after 4.5 hours, though research on that is still ongoing. NHLBI also describes procedures to open a blocked artery, including a thrombectomy, which "removes the clot from the blood vessel." In NHLBI's words, "The sooner treatment begins, the better your chances of recovery."²

The legal standard in Oregon

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."³ Subsection (2) sets the same kind of standard for physician associates. A medical malpractice claim does not require proof that a doctor was reckless or grossly negligent. The question is whether the physician's care fell below that standard.

For a missed-stroke claim, the questions that may be examined include the following:

• Was the history and physical adequate? Did the physician perform or document a focused neurological examination, including a stroke-specific assessment, when the presentation warranted it?
• Was imaging ordered in time? Was brain imaging ordered in the face of stroke-suggestive symptoms?
• Was tPA considered? When imaging points to ischemic stroke, was eligibility for thrombolysis assessed and the decision documented?
• Was the patient discharged with red-flag symptoms still in play? Was the patient sent home with persistent neurological deficits, or without a clear plan for follow-up imaging?

Causation: did the delay cause additional harm

A missed stroke is not, by itself, a malpractice case. A separate question is whether the delay caused additional harm. In stroke cases, that question can turn on the treatment windows described above: whether a timely diagnosis would have left the patient eligible for treatment that the later diagnosis ruled out.

The two-year discovery rule and the five-year repose

Under ORS 12.110(4), a medical malpractice action in Oregon 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."⁴ 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."⁵ The court also said the plaintiff "does not need to know to certainty that each particular element exists."⁵ In stroke cases, the date the stroke is finally identified and the date the period starts are not necessarily the same: the diagnosis may be when the harm becomes known, though a substantial possibility of harm can be apparent earlier; the question under Gaston is when a reasonable person would have been aware of a substantial possibility of harm, causation and tortious conduct.

The same subsection also sets an outer limit, called a statute of repose. It provides that, "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."⁴

Whether a conversation with the hospital, a payment, or something a provider said affects any of these deadlines is a fact-specific question.

Public hospitals require earlier notice

If the missed-stroke care was provided by a public body, the Oregon Tort Claims Act's notice and filing rules apply. Under ORS 30.275(2), notice of claim 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.⁶ Under ORS 30.275(3), that requirement can be satisfied by formal written notice, by actual notice, by commencing an action on the claim within the notice period, or by the public body's payment of all or any part of the claim.⁶

The filing deadline is also different. ORS 30.275(9) provides that, with limited exceptions and "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," an action within the scope of the Tort Claims Act "shall be commenced within two years after the alleged loss or injury."⁶ And under ORS 30.275(1), no such action "shall be maintained unless notice of claim is given as required by this section."⁶

What a stroke malpractice review looks like in practice

A stroke malpractice review starts with the ER chart from the missed-diagnosis visit, the imaging records (or absence of them), the discharge instructions, and the medical record from the visit at which the stroke was finally identified. A qualified neurologist or emergency-medicine expert reviews those records and forms an opinion on whether the standard of care was met. From there, the analysis turns on causation: would competent care have changed the trajectory?

The legal framework is set by statute: the physician's duty of care is defined in ORS 677.095, and for an injury claim the deadlines are set by ORS 12.110(4) — or, for a claim against a public body, by ORS 30.275. A claim arising from a death is subject to its own rules. Much of the work is in the medical record review and the expert analysis.

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. Newman-Toker DE, Moy E, Valente E, Coffey R, Hines AL. Missed diagnosis of stroke in the emergency department: a cross-sectional analysis of a large population-based sample. Diagnosis (Berl). 2014. https://pmc.ncbi.nlm.nih.gov/articles/PMC5361750/ ↩ ↩²

2. Stroke — Treatment (National Heart, Lung, and Blood Institute, NIH). https://www.nhlbi.nih.gov/health/stroke/treatment ↩

3. ORS 677.095 — Duty of care. https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩

4. ORS 12.110 — Actions for certain injuries to person not arising on contract; action for overtime or premium pay; action for professional malpractice; effect of fraud or deceit. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩ ↩²

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

6. ORS 30.275 — Notice of claim; time of notice; time of action. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩² ↩³ ↩⁴