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.
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. Defendant drug companies 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.
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.
SUMMARY
JUDGMENT
VICARIOUS
LIABILITY