Bridge v. Carver, 148 Or App 503, rev den, 326 Or 57 (1997).
Physician provided prenatal services to the plaintiff as part of a county program. Where the county controls the patients that a physician treats and the scope of the patients’ treatment, the physician is an agent of the county and subject to the Oregon Tort Claims Act (OTCA), ORS 30.265. A physician who is an actual agent of a public body is entitled to immunity. Plaintiff’s recovery was limited to $500,000.
O’Brien v. State of Oregon, 312 Or 672 (1992).
Plaintiff brought a medical malpractice action against Oregon Health Sciences University. Defendant moved to dismiss the claim as time-barred pursuant to the five year statute of ultimate repose for medical malpractice actions in ORS 12.110 (4). The Court of Appeals reversed the trial court’s dismissal, holding the OTCA specifically provided that the statute of repose for medical malpractice claims was inapplicable to claims against public bodies such as OHSU. ORS 30.265(3)(d) (1989). After the decision of the Court of Appeals, the Oregon Legislature amended the OTCA so the statute of repose for medical malpractice actions was a valid defense for public bodies. In light of those legislative changes, the Oregon Supreme Court dismissed the petition for review, leaving the trial court to determine whether the legislative changes were applicable to the case at bar.
Giese v. Bay Area Health Dist., 101 Or App 410, rev den, 310 Or 281 (1990).
Patient brought an action against a physician in a public hospital alleging misdiagnosis of a groin injury. Defendant argued that he was immune from liability because he was an "agent" of the hospital under the OTCA, ORS 30.275(8). A physician who treats a patient at a public hospital is not immune from a patient’s medical malpractice claim under the OTCA unless the physician was the actual agent and subject to the right of the hospital. The legislature did not intend to provide immunity to an ostensible agent of a public body under the OTCA.
Eldridge v. Eastmoreland General Hospital, 307 Or 500 (1989).
Plaintiff filed a wrongful death action alleging that the hospital and pediatrician were negligent in failing to intubate the infant defendant. The discovery rule, which holds that a cause of action does not commence until the plaintiff knew or should have known that a tort was committed and that the defendant committed it, does not apply to wrongful death actions. The wrongful death statute, ORS 30.020, provides that an action must be commenced within three years after the occurrence of the injury that caused the decedent’s death. The limitations period is not tolled until the appointment of a personal representative. NOTE: The Oregon Supreme Court acknowledges that the discovery rule is applicable to Oregon Tort Claims Act.
Banda v. Danner, 87 Or App 69 (19887), aff’d without opinion by an equally divided court, 307 Or 302 (1988).
In a medical malpractice action involving injury to a minor, the statute of limitations and tort claim notice period begin to run only when the guardian ad litem is appointed and knows facts sufficient to initiate its running. The fact that the person appointed the guardian may have known the facts for some time has no bearing upon the running of the time period because, until appointed guardian, the person has no legal duty to act. Issue of fact when the guardian ad litem knew or reasonably should have known that minor was injured. But see Perez v. Bay Area Hospital, 315 Or 474 (1993) (tort claims notice period is not tolled pending the appointment of a guardian ad litem for a minor child when the discovery rule is not involved).
Bergstad v. Thoren, 86 Or App 70 (1987).
Minor alleged that she was injured by the negligence of a health facility covered by the OTCA. At the time of injury, the statute of limitations was seven years. Subsequently, the legislature amended the OTCA to provide for an absolute two-year statute of limitations. Plaintiff filed her case within the seven-year statute of limitations but more than two years after injury. The trial court granted defendant’s motion for summary judgment on the grounds that plaintiff’s complaint was time-barred by the two-year statute of limitations. The Court of Appeals reversed. In the absence of legislative direction to the contrary, a statute affecting legal rights and obligations arising out of past actions is applied only prospectively. The amendment to the statute of limitations did not apply retroactively to bar an action which accrued before the effective date of the statute.
Themins v. Emanuel Lutheran, 54 Or App 901 (1981), rev den, 292 Or 568 (1982).
Plaintiff brought a claim for negligent care and treatment against an orthopedic resident and hospital. Trial court erred in granting the defendants’ motions for summary judgment. OTCA did not require a plaintiff to give tort claims notice to an individual state employee or agent prior to filing suit. Defendant hospital, a private non-profit corporation providing hospital services to the public, was not an instrumentality of the State for purposes of the OTCA despite its contractual agreement to take state medical school residents on rotation. Therefore, failure to provide tort claim notice to the defendant hospital was not fatal to the plaintiff’s claim.
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