Alexander v. Rask, 90 Or App 379, rev den, 306 Or 527 (1988).
Patient brought a medical malpractice action against an oral surgeon alleging that the defendant was negligent in extracting her wisdom teeth. Trial court granted the defendant partial summary judgment as to the punitive damages claim and granted a directed verdict on the issues of failure to warn and battery. The jury returned a verdict for defendants on other claims.
A physician has a duty to warn if (1) the risk of injury inherent in the treatment is material, (2) feasible alternatives exist and (3) plaintiff can be advised of risks without risk to his or her well-being.
Hoffman v. Rockey, 55 Or App 658, rev den, 292 Or 722 (1982).
Plaintiff brought an action against an orthopedic surgeon for post-operative surgical infection, resulting in amputation of plaintiff’s leg. Trial court erred in not giving a requested jury instruction which stated that the statute of limitations does not begin to run until the harm has occurred and it appears reasonably probable that the damage complained of was caused by the negligence of the defendant, and not some other cause. The discovery rule applies to the two year medical malpractice statute of limitations, ORS 12.110(4). A plaintiff should reasonably discover a cause of action exists when the plaintiff realizes: 1) that an injury occurred; 2) the injury is attributable to an act of the tortfeasor; and 3) the act of the tortfeasor was somehow negligent. An objective standard is used to determine when the plaintiff should reasonably have discovered the cause of action.
A physician’s failure to warn of possible consequences is not a continuing tort, therefore the continuous treatment doctrine does not extend the statute of limitations. The claim of negligent failure to warn was complete upon the physician’s failure to give plaintiff adequate information prior to surgery. The statute of limitations for a failure to warn claim begins to run when the patient perceived difficulties and knew that the physician had failed to warn of the particular problems.
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