Minisce v. Thompson, 149 Or App 746 (1997).
Trial court granted summary judgment against the plaintiff’s claim for dental malpractice on the grounds that the claim was barred by the two-year statute of limitations in ORS 12.110(4). The Court of Appeals reversed as to the crowns claim because there was a genuine issue of material fact as to when the plaintiff knew or should have known about the injury. The defendant placed plaintiff’s crowns in October 1990, but the plaintiff did not file suit until 1995. In his motion for summary judgment, the defendant relied on the absence of allegations as to why the plaintiff could not bring the complaint within two years of injury. Plaintiff submitted an affidavit that she did not discover her injury until 1994 when another dentist told her of the problem with the crowns. Where the defendant attacks the sufficiency of the complaint via a motion for summary judgment and the plaintiff offers evidence which would justify amending the complaint, the complaint is deemed amended for purposes of the motion.
Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452 (1996).
Plaintiff’s complaint alleging medical malpractice that occurred more than five years before the complaint was filed was barred by the five-year statute of repose, ORS 12.110(4). The statute of repose is triggered when the negligent act or omission occurs. In the absence of fraud, deceit or misleading representation, the statute of repose is absolute. The period of repose is not tolled on a theory of continuing treatment.
McClure v. LeRoy, 133 Or App 229 (1995).
Patient sued a dentist for malpractice, alleging that the dentist improperly prepared the teeth for a crown, negligently struck a nerve in the patient’s mouth with a needle, and negligently set the crown too high. Defendant’s motion for summary judgment was granted on the grounds that the statute of limitations, ORS 12.110(4), barred plaintiff’s claims.
The statute of limitations begins to run when the plaintiff knows or in 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. See Gaston v. Parsons, 318 Or 247 (1994). As to the first two claims, the plaintiff knew that the defendant had harmed him at time of treatment because the defendant admitted that he had mistakenly hit plaintiff’s nerve.
Gaston v. Parsons, 318 Or 247 (1994).
In November 1990, the plaintiff filed a complaint against the defendant physicians for negligence arising from a surgical procedure performed in March 1987. Defendants’ motion for summary judgment was granted on the grounds that plaintiff’s claims were barred by the two-year statute of limitations for medical malpractice cases. The issue on appeal was when the statute of limitations begins to run in a medical malpractice action.
ORS 12.110(4) was intended to codify the discovery rule in Oregon. ORS 12.110(4) requires that claims arising from medical treatment 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." Injury as used in ORS 12.110(4) has three elements: (1) harm; (2) causation; and (3) tortious conduct. The plaintiff does not need to know with certainty that each element exists before the statute of limitations begins to run. The statute of limitations commences 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 exists. This is an objective standard.
Whether a reasonable person would have been aware of a substantial possibility of tortious conduct is a question of fact that depends upon the nature of the harm suffered, the nature of the medical procedure, and other relevant information. Issue for the jury precluding summary judgment where the plaintiff may not have been able to discover the injury due to the defendant physician’s assurances that the numbness in plaintiff’s arm following surgery was temporary.
For the purposes of statute of limitations, an informed consent claim is not that same as a negligent surgery claim because informed consent claims generally require knowledge of different facts than negligence claims. Plaintiff’s medical malpractice claim was not barred as a consequence of his informed consent claim being time-barred.
Dauven v. St. Vincent Hospital, 130 Or App 584 (1994), appeal after remand, 144 Or App 363 (1996).
Plaintiffs’ complaint was dismissed on the grounds that it was barred by the two-year statute of limitations for medical malpractice cases. The issue on appeal was whether the plaintiff’s claim sounded in tort (two-year statute of limitations) or in contract (six-year statute of limitations). Plaintiffs alleged that the defendants breached an agreement that the plaintiffs’ daughter would not be given food, chemicals, or medications without the plaintiffs’ consent. The Court of Appeals held that the plaintiffs’ claim sounded in contract because the agreement does not implicate any standard of care. The trial court erred in dismissing plaintiff’s claim under the two-year statute of limitations for tort claims.
McKechnie v. Stanke, 124 Or App 405 (1993).
Plaintiffs alleged that the defendants’ failed to correctly diagnose and treat plaintiffs’ son over an eight year period. Trial court granted the defendants’ motion for summary judgment on the portions of plaintiffs’ claim arising out of diagnoses and treatment that occurred more than five years before the filing of plaintiffs’ complaint on the grounds that such claims were barred by the statute of repose. ORS 12.110(4). Trial court lacks authority to enter final judgment under ORCP 67B for anything less than one claim or a portion of a claim that is dispositive as to at least one party. The Court of Appeals and Supreme Court lack jurisdiction to hear an appeal if not final under ORCP 67B. See Lesch v. DeWitt, 317 Or 585 (1993).
Lesch v DeWitt, 317 Or 585 (1993).
Plaintiff alleged that the defendant negligently prescribed an addictive drug to her for over a period of eight years. Defendant moved to dismiss the complaint as barred under ORS 12.110(4). Trial court dismissed the portions of plaintiff’s claim arising more than five years before filing of the complaint and entered judgment under ORCP 67B. The Supreme Court held that a trial court lacks authority to enter judgment on anything less than one whole claim or a portion of a claim that adjudicates the interests of at least one party. Both the Supreme Court and the Court of Appeals lacked jurisdiction to hear the appeal.
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.
Asher v. Hald, 100 Or App 630, rev den, 310 Or 133 (1990).
Plaintiff brought a medical malpractice suit against the physician who surgically removed a lymph node from the plaintiff’s neck in 1987. The plaintiff experienced pain after the surgery and returned to the defendant for treatment. Defendant performed a second surgery and a biopsy revealed that the defendant had severed the plaintiff’s nerve in the first surgery. The defendant purposefully concealed this fact from the plaintiff. Plaintiff did not learn about the severed nerve until more than five years later when a subsequent treating physician informed him of it. The evidence presented raised a genuine issue of material fact as to whether a reasonable person would rely on the treating physician’s explanation of the post-surgical problems experienced by the plaintiff. Trial court erred in granting summary judgment on statute of limitations grounds.
Since plaintiff’s action was brought more than five years after the surgery, plaintiff must show that the failure to commence the action was caused by fraud, deceit or misleading representation and that the action was initiated within two years after the fraud, deceit or misleading representation was discovered or in the exercise of reasonable care should have been discovered.
O’Gara v. Ptacek, 96 Or App 39 (1989).
Plaintiff filed a complaint against her physician for negligence in failing to advise her of the effects of radiation and chemotherapy on vital body organs and in failing to advise of the high degree of risk to her kidneys for administering each dose of chemotherapy. Trial court erred in granting the defendant’s motion for summary judgment on the ground that the claims were barred by the statute of limitations The statute begins to run when the plaintiff knew or should have known "through diligent inquiry, facts from which a reasonable factfinder could conclude that plaintiff’s injury was caused by an act of the defendant that was somehow negligent." The Court of Appeals held that the first time the plaintiff knew or had reason to know that she had a cause of action against the defendant was when she learned of the damage to her internal organs as a result of radiation and chemotherapy.
A defendant physician may offer his or her own expert medical opinion on the applicable standard of care to support a summary judgment motion. Such an affidavit must lay a foundation for the physician’s expertise, personal knowledge of the matters at issue, and a statement that in the physician’s opinion the treatment was consistent with the degree of skill, care and diligence exercised by ordinarily careful physicians performing the same specialty in the same or similar circumstances.
Jones v. Salem Hospital, 93 Or App 252 (1988), rev den, 307 Or 514 (1989).
Minor plaintiff brought suit against physicians and hospital alleging negligence in treatment during and subsequent to his birth. Trial court granted the defendants motion to dismiss on the grounds that the action was time-barred because it was brought after the five-year period of ultimate repose for medical malpractice actions. ORS 12.110(4). An issue on appeal was whether the alleged "misleading representations" tolled the statute of limitations. ORS 12.110(4) provides in the case of fraud, deceit or misleading representation the statute is tolled for two years from time when such fraud, deceit or misleading representation should have been discovered. The court held that an unintentional contemporaneous misrepresentation does not toll the statute of repose if the alleged misrepresentation simply asserts proper performance of a medical procedure which is the gravamen of the complaint. See also Skuffeeda v. St. Vincent Hospital, 77 Or App 477, rev den, 301 Or 240 (1986); Duncan v. Augter, 268 Or 723 (1970).
As applied to minors, the medical malpractice statute of ultimate repose does not violate state or federal equal protection, even though it provides a shorter time limitation than that for other torts. ORS 12.110(4) treats all medical malpractice plaintiffs alike and is supported by a rational relationship to the purpose of the statute.
A hospital may be vicariously liable for the "misleading representations" made by apparent agents of the hospital. Physicians who are independent contractors may be apparent agents of a hospital when they perform professional services which are integral to hospital operations and which hospitals hold themselves out to the public to provide such as emergency, radiology and pathology services. The court concluded that the pediatric services which were at issue in this case are among the general run of professional specialities and were not integral to hospital operations. Therefore, the plaintiff’s claims against the hospital were barred by the statute of repose provision of ORS 12.110(4).
Gannon v. Rogue Valley Medical Center, 92 Or App 314, rev den 307 Or 145 (1988).
Plaintiff brought a medical malpractice action against a medical center, alleging that she contracted meningitis as a result of a negligently administered myelogram. As a result of the meningitis, plaintiff subsequently suffered chronic organic brain syndrome. Evidence showed that the plaintiff declined to file suit until a connection between plaintiff’s meningitis and organic brain syndrome was discovered. The trial court properly granted the defendant's motion for summary judgment for failure to bring suit within statute of limitations, ORS 12.110(4), because the statute began to run when the plaintiff became aware of the connection between the meningitis and the myelogram, not when plaintiff discovered that her subsequent chronic organic brain syndrome was related to the meningitis. A plaintiff should discover a claim when the plaintiff realizes (1) injury, (2) injury can be attributed to the act of the alleged tortfeasor and (3) the act was somehow negligent.
Branch v. Hensgen, 90 Or App 528 (1988).
Plaintiff sued a physician for negligently administering penicillin. The trial court found that the plaintiff's action was timely and entered a jury verdict in favor of the defendants on the merits. The Court of Appeals reversed, holding that the plaintiff’s action was barred by the two-year statute of limitations. The plaintiff should have been aware that her adverse reaction and loss of kidney function was or could have been due to the administration of penicillin after the plaintiff had shown signs of allergic reaction to penicillin.
The statute of limitations does not begin to run until the plaintiff knew or reasonably should have known that the plaintiff was injured by the defendant. A plaintiff has a duty to use due diligence to discover facts relating to injury and causation.
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 Oregon Supreme Court held that, no matter what the plaintiff knew or should have known, the statute of limitations expired three years after the injury that caused 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.
Cornell v. Merck & Co., 87 Or App 373 (1987).
This was a combined medical negligence and products liability action arising from injury to plaintiff’s eyes. The defendant ophthalmologist diagnosed plaintiff with glaucoma and prescribed a drug manufactured by defendant Merck. Trial court granted the defendants’ motion to dismiss on the grounds that the plaintiff’s complaint was barred by the statute of limitations. Plaintiff filed the complaint more than five years after the alleged treatment. Plaintiff argued that his complaint was timely because the defendant had engaged in a course of continuous treatment from the time of misdiagnosis and prescription until he discovered the side effects, or that each diagnosis and prescription was separately actionable. The Court of Appeals upheld the trial court’s dismissal because the complaint did not allege continuing tort, but rather one instance of diagnose and prescription of the drug which was outside the limitations period. The Court of Appeals also affirmed dismissal of the products liability claim because the plaintiff did not allege a defect or failure to warn regarding the product. Plaintiff’s allegation that the product was dangerous was insufficient to state a claim.
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 periods 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 (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).
O’Gara v. Kaufman, 81 Or App 499 (1986).
Plaintiff’s original complaint, filed in 1984, alleged that the defendant physicians negligently misdiagnosed plaintiff’s tumors and informed her that they were inoperable. The trial court dismissed plaintiff’s original complaint as barred by the statute of limitations because the plaintiff knew or should have known of her injury when the tumors were surgically removed in 1981 as plead in plaintiff’s complaint. Plaintiff’s amended complaint contained substantially the same allegations but did not allege the 1981 surgery. The defendants again moved to dismiss plaintiff’s complaint arguing that allegations in the original complaint are judicial admissions which are binding on the plaintiff. Trial court erred in dismissing plaintiff’s amended complaint. A motion to dismiss on the grounds that the pleading was not commenced within the time limit (ORCP 21A(9)) is limited to what appears on the face of the pleading. In considering a motion to dismiss the court looks only to the facts alleged in the amended complaint and not the facts alleged in the superceded original complaint.
The plaintiff commenced action more than two years after the limitations period would appear to run, but alleged that her injuries "did not manifest" until less than two years before she filed her complaint. Plaintiff’s allegation that her injury "did not manifest" was sufficient to allege an inability to discover the injury until the date it manifested.
Skuffeeda v. St. Vincent Hospital and Medical Center, 77 Or App 477, rev den, 301 Or 240 (1986).
Plaintiff filed an action against physicians and radiologist for medical malpractice and fraud. Plaintiff alleged that during his open heart surgery, a screw fell off of a medical device and was left in plaintiff’s chest. Plaintiff further alleged that all of the defendants reviewed post-surgery x-rays and saw the screw, but actively concealed this fact from the plaintiff. Plaintiff filed suit five and one-half year after the surgery contending that the defendants’ false and misleading representations prevented him from discovering his injury. ORS 12.110(4) provides an additional two years after the five-year statute of ultimate repose has run where the plaintiff was prevented from discovery his injury due to fraud, deceit or misrepresentation. The defendants moved to dismiss plaintiff’s claims as time-barred, citing the interpretation of the statute in Duncan v. Augter which held that misrepresentations which go to the gravamen of the complaint do not toll the statute. The Court of Appeals held that plaintiff’s claims relating to the failure to advise plaintiff that a screw was left in him and failure to remove the screw were barred because the alleged misrepresentations went to the gravamen of these claims. However, plaintiff’s claims relating to negligent performance of the heart surgery were tolled because the misrepresentations that the surgery went well did not go to the gravamen of those claims.
Duncan v. Augter, 62 Or App 250 (1982), rev den, 295 Or 122 (1983).
Plaintiff filed this medical malpractice action in 1976, seeking damages for injuries resulting from a surgery performed by the defendant in 1968. Defendant moved for summary judgment on the grounds that the complaint was barred by the two year statute of limitations. Plaintiff alleged that she was unable to discover her injury until 1975 when a subsequent surgery revealed that her abdominal pains since the first surgery were due to an infection from a fragment of her appendix that was not removed.
The statute of limitations begins to run when the plaintiff knew or should have known through diligent inquiry facts, from which a reasonable person could conclude that the plaintiff’s injury was caused by an act of the defendant that was negligent. The statute of ultimate repose requires that claims for medical malpractice must be brought within five years from the date of treatment, omission or operation. If no action is commenced within the five-year period because of fraud, deceit or misleading representation, the plaintiff can bring the action within two years from the date when the fraud, deceit or misleading representation is discovered or within the exercise of reasonable care should have been discovered. A defendant’s misleading representation only delay the running of ORS 12.110(4) if they actually mislead the plaintiff and cause the plaintiff not to pursue the claim until the plaintiff discovers the misleading representations. Misleading representations do not delay the running of the statute of limitations if the plaintiff knew or should have known that the plaintiff had a cause of action despite the representations.
The Court of Appeals held that the plaintiff should have known that she had a cause of action in 1971 when the plaintiff had surgery to remove a bowel obstruction and the physician discovered an abscess where the plaintiff’s appendix had been removed. After the 1971 surgery, plaintiff hired an attorney and through a diligent inquiry should have discovered that the defendant was somehow negligent. Even though the plaintiff did not know the full extent of her injuries until the 1975 surgery when it was discovered that her surgery had not "gone well" as the defendant physician stated but that part of her appendix had not been removed, the statute of limitations began to run in 1971 when plaintiff should have discovered sufficient facts to know that she had a cause of action.
Hoffman v. Rockey, 55 Or App 658, rev den, 292 Or 722 (1982).
Plaintiff filed 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.
Shaughnessy v. Spray, 55 Or App 42 (1981), rev den, 292 Or 589 (1982).
Plaintiff brought a wrongful death action alleging that her son died as a result of an overdose of a medication prescribed by the defendant physician and manufactured by the defendant drug companies. Plaintiff’s original complaint only named the physician as a defendant and alleged medical malpractice. The plaintiff filed a first amended complaint which added the drug companies as defendants and alleged products liability and negligence. The defendant drug companies moved to dismiss the first amended complaint on the grounds that it was not filed in compliance with ORCP 23A. Subsequent consent of the trial court and the adverse party does not validate the premature filing of a first amended complaint, where the first amended complaint was filed prior to obtaining consent and was dismissed under ORCP 23A for failure to obtain consent. The Court of Appeals questioned whether a trial court has authority to subsequently validate a premature filing of an amended pleading. Plaintiff then filed a second amended complaint making the same allegations as the first amended complaint.
Defendant drug companies then moved to dismiss the second amended complaint as barred by the three-year statute of limitations for wrongful death actions. The defendants argued that the wrongful death statute of limitations begins to run at the time of the decedent’s death; therefore, the discovery rule did not apply. The Court of Appeals held that the discovery rule applies to the three-year wrongful death statute of limitations, independently of the statute of limitations which would apply to an action for the underlying injury. But see Eldridge v. Eastmoreland General Hospital, 307 Or 500 (1989) (holding that the discovery rule does not apply to wrongful death statute). Although the plaintiff was aware of the injury at the time her son died and that her son’s death was due to the prescribed medication, there was an issue of fact as to when the plaintiff knew or should have known of the dangerousness of the medication manufactured by the defendant drug companies.
Sculace v. Rogers, 49 Or App 433 (1980).
Plaintiff sued for injuries sustained when an IV line infiltrated into her arm tissue during surgery. Plaintiff filed her lawsuit more than two years after the date of the surgery. At trial, plaintiff presented evidence that she was not told the cause of her injury until several weeks after surgery. The jury was asked to decide when the plaintiff knew or should have known of the injury, and was given an instruction that the plaintiff’s complaint must have been filed within two years from the date of injury. The instruction stated that "an injury is discovered when a reasonably prudent person associates symptoms with a serious or permanent condition and at the same time perceives that the defendants played some role in causing or inducing that condition." Plaintiff requested an alternate instruction be given, but had not taken exception to the statute of limitations instruction that was given. Instruction was not reversible error because it was not clearly erroneous, and because the plaintiff failed to take exception to the instruction during the course of the trial, depriving the trial judge of an opportunity to correct any alleged error prior to instructing the jury.
Baxter v. Zeller, 42 Or App 873, rev den, 288 Or 253 (1979).
Plaintiff filed a wrongful death action alleging medical malpractice against a physician and hospital. The defendants’ motion for summary judgment was granted on the grounds that the two-year statute of limitations for medical malpractice actions, ORS 12.110(4), barred plaintiff’s action because the complaint was filed more than two years after the decedent died. The Court of Appeals reversed. The wrongful death act, ORS 30.020(1), created a new and separate cause of action which could arise if death was caused by any wrongful act, including those of physicians. Therefore, the three-year statute of limitations in ORS 30.020(1) must be applied in wrongful death actions, not the statute of limitations for the underlying claim.
Duncan v. Augter, 286 Or 723 (1979).
Plaintiff sued a surgeon more than seven years after the surgery. The defendant entered a demurrer to the pleadings, asserting that the action was barred by the two-year statute of limitations, ORS 12.110(4). The trial court overruled the demurrer, and the case was tried, resulting in a verdict for plaintiff. The Supreme Court noted that the language of ORS 12.110(4) has three parts: the first establishing the two-year limitations period after discovery, the second establishing a five-year ultimate repose period, and the third providing a tolling period during which the limitations period is tolled because of fraud, deceit, or misleading representation. Plaintiff alleged that the defendant misleadingly told her that he had properly performed the surgery. In order for a representation to toll the statute, it must misrepresent something other than the careful performance or success of the very treatment or operation whose failure is the basis of the plaintiff's complaint. In this case, because the defendant's representation dealt directly with the success of the surgery he had performed, and because there was no evidence to establish that he knew that he had improperly performed the surgery, his statement did not qualify as a "misleading representation," and was therefore insufficient to toll the statute of limitations.
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