Gaston v. Parsons

864 P.2d 1319, 318 Or. 247, 1994 Ore. LEXIS 2

• Court: Oregon Supreme Court
• Decided: January 6, 1994
• Docket: CC A9011-07199; CA A71991; SC S40098
• Status: Published

Opinions

UNIS, J.

The issue in this case is when the statute of limitations begins to run in a medical negligence action. Plaintiff filed this action in November 1990, seeking damages for harm suffered as a result of defendants’ alleged negligence in connection with a surgical procedure performed in March 1987. Plaintiffs action was based both on (1) defendants’ failure to obtain plaintiffs informed consent and (2) defendants’ negligent performance of the surgery.¹ Defendants² moved for summary judgment on the ground that plaintiff had failed to file the action within the two-year statute of limitations, ORS 12.110(4).³ The trial court granted the motion and entered judgment for defendants. The Court of Appeals reversed, holding that the informed consent claim was barred, but that the negligent surgery claim was not barred because the statute of limitations did not start to run on that claim until plaintiff knew or should have known of defendants’ negligence. Gaston v. Parsons, 117 Or App 555, 844 P2d 941 (1993). We allowed defendants’ petition for review.⁴ We affirm the decision of the Court of Appeals on different grounds.

On review of a summary judgment, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Christensen v. Murphy, 296 Or 610, 613, 678 P2d 1210 (1984). In reviewing the trial court’s ruling on a motion for summary judgment, we view the evidence and all reasonable inferences in the light most favorable to the non-moving party (plaintiff in this case). Stephens v. Bohlman, 314 Or 344, 346-47, 838 P2d 600 (1992).

Plaintiff was a partial quadriplegic whose only functioning limb was his left arm. Plaintiff sought medical treatment from defendants for muscle spasms in his lower body. Defendant Parsons (Parsons) suggested a procedure that involved a spinal injection of a chemical solution to deaden the nerves that were causing the muscle spasms. Before the surgery, Parsons informed plaintiff of certain risks to the procedure, but not of any risk of possible loss of function in plaintiffs arm. Defendants performed the procedure on March 12, 1987. After the surgery, plaintiff noticed that his left arm was numb and did not function. Parsons assured plaintiff that the loss of function in his left arm was temporary and that use of his arm would return in six months to two years.

Plaintiff did not recover the use of his left arm within two years of the surgery. Plaintiff filed this action on November 14, 1990, allegingthat defendants were negligent both in failing to obtain plaintiffs informed consent before the surgery and in negligently performing the surgery. Defendants moved for summary judgment, asserting that plaintiff’s claims were barred by the statute of limitations, ORS 12.110(4), because they were filed more than two years after plaintiff became aware that his left arm was numb and did not function.

ORS 12.110(4) requires actions for claims arising from medical treatment to 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.”⁵ We need only to determine if a genuine issue of material fact exists as to when plaintiff discovered or in the exercise of reasonable care should have discovered his “injury,” as that word is used in ORS 12.110(4). We find that a genuine issue of fact does exist.

In interpreting a statute, we seek to give effect to the intent of the legislature. ORS 174.020. The first step of that process is to examine the text and the context of the provision itself and other related statutes. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Context includes case law interpreting those statutes. See State v. Sullens, 314 Or 436, 443, 839 P2d 708 (1992) (“ ‘When this court interprets a statute, that interpretation becomes a part of the statute as if written into it at the time of its enactment’ ”) (quoting Walther v. SAIF, 312 Or 147, 149, 817 P2d 292 (1991)).

In examining the text and the context of ORS 12.110(4), we note that “injury” is not defined by statute or by case law. We also note that “injury” appears in other statutes of limitations. See ORS 12.110(1) (general tort); ORS 30.275(8) (tort claims against public bodies). This court has recognized that the discovery rule applies to each of those statutes. See Dowers Farms v. Lake County, 288 Or 669, 681, 607 P2d 1361 (1980) (ORS 30.275); U.S. Nat’l Bank v. Davies, 274 Or 663, 668-69, 548 P2d 966 (1976) (ORS 12.110(1)). This court’s prior decisions indicate that the use of the word “injury” in statutes of limitations does not refer to injury in the ordinary sense — that is, physical harm. Instead, those decisions have recognized that discovery of “injury” is comprised of different components, some of which are harm, identity of the tortfeasor, and causation. See, e.g., Dowers Farms v. Lake County, supra, 288 Or at 669 (discovery of harm); Adams v. Oregon State Police, 289 Or 233, 239, 611 P2d 1153 (1980) (identity of the tortfeasor); Schiele v. Hobart Corporation, 284 Or 483, 490, 587 P2d 1010 (1978) (cause of harm).

In interpreting the text of a provision, we also consider “rules of construction that bear directly on the interpretation of the statutory provision in context.” PGE v. Bureau of Labor and Industries, supra, 317 Or at 611. One such well-established rule is that words in a statute that have a well-defined legal meaning are to be given that meaning in construing the statute. State v. Dumond, 270 Or 854, 858, 530 P2d 32 (1974); Cordon v. Gregg, 164 Or 306, 311-12, 97 P2d 732, 101 P2d 414 (1940). As used in ORS 12.110(4), “injury” is such a word. In the tort context, in which ORS 12.110(4) applies, “injury” is defined as the “invasion of any legally protected interest of another.” Restatement (Second) Torts § 7(1) (1965). In other words, an “injury” is a legally cognizable harm.

The context of ORS 12.110 supports this interpretation of “injury.” Another rule of construction that bears directly on how to read the text of the statute is the maxim ejusdem generis, which provides that where general words follow the enumeration of particular classes of things, the general words are to be construed as applicable to things of the same general nature or class. See State v. Brantley, 201 Or 637, 645, 271 P2d 668 (1954) (statingmaxim). ORS 12.110(1) provides in part: “An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract * * * shall be commenced within two years.” Applying the rule of ejusdem generis to ORS 12.110, the term “injury” falls within the class of words that precede it — in this instance, torts. Thus, our reading of “injury” in ORS 12.110(4) is consistent with that word’s meaningin ORS 12.110(1) (i.e., “injury” means legally cognizable harm).

However, the text and context of ORS 12.110(4) are not unambiguous. We therefore consider legislative history. See PGE v. Bureau of Labor and industries, supra, 317 Or at 611-12 (when text and context are ambiguous, it is proper to consider legislative history). ORS 12.110(4) was first enacted in 1967. Or Laws 1967, ch 406, § 1. The legislature’s understanding of the word “injury” at the time that statute was adopted is dispositive, unless subsequent amendments have altered that meaning. The original version of the statute provided:

“An action to recover damages for injuries to the person where in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood, or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, shall 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 provided that such action shall be commenced within seven years from the date of the treatment or operation upon which the action is based.” Former ORS 12.110(4) (1967) (emphasis added).

Thus, the original version of ORS 12.110(4) made clear that “injury” was what formed the basis for an action, i.e., legally cognizable harm, and “harm” was what was caused by the “injury,” i.e., untoward effects.

ORS 12.110(4) was intended to codify the discovery rule announced by this court in Berry v. Branner, 245 Or 307, 421 P2d 996 (1966). Josephs v. Burns & Bear, 260 Or 493, 491 P2d 203 (1971).⁶ In examining Berry, we can discern what the legislature intended by the word “injury” in ORS 12.110(4). In Berry, this court held that the plaintiff, who suffered pain as a result of a needle negligently left in her abdomen following a hysterectomy, was not barred from recovery as a matter of law by the statute of limitations because the statute did not begin to run until the needle was discovered. This court explained:

“To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, ‘You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,’ makes a mockery of the law.” Berry v. Branner, supra, 245 Or at 312.

In Berry v. Branner, supra, 245 Or at 312, this court referred to discovery of the “wrong” in holding that the statute of limitations does not begin to run until the plaintiff can “reasonably be expected to have knowledge of any wrong inflicted.” (Emphasis added.) Similarly, in Frohs v. Greene, 253 Or 1, 7, 452 P2d 564 (1969), which the legislature codified in 1969,⁷ this court spoke in terms of “tortious conduct” when it held that the statute does not begin to run until plaintiff is on notice of defendant’s “tortious conduct.” (Emphasis added.) Nothing in the subsequent amendment of ORS 12.110(4) indicates any legislative intent to alter the original meaning of the word “injury.”

In light of the text and the context of ORS 12.110(4) and the legislative history of that provision, we hold that the legislature intended the word “injury,” as used in ORS 12.110(4), to mean legally cognizable harm. In the tort context of ORS 12.110(4), a harm is legally cognizable if it is the result of tortious conduct. Therefore, “injury,” as used in ORS 12.110(4), consists of three elements: (1) harm; (2) causation; and (3) tortious conduct.⁸

To discover a particular element of legally cognizable harm, the plaintiff does not need to know to certainty that each particular element exists. The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim. See Frohs v. Greene, supra, 253 Or at 4 (discovery rule affords opportunity for plaintiff to discover that claim exists). Actual knowledge that each element is present is not required. On the other hand, a mere suspicion is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations 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.

We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care. In such cases, the relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation. See Woolston v. Wells, 297 Or 548, 557, 687 P2d 144 (1984) (reasonable care means what a reasonable person of ordinary prudence would do in the same or similar circumstances). Relevant to this analysis will be a plaintiffs failure to make a further inquiry if a reasonable person would have done so. The discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm.

We now consider whether a genuine issue of material fact exists in this case as to plaintiffs discovery of the “tortious conduct” element of legally cognizable harm. Whether a reasonable person of ordinary prudence would be 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 circumstances. The nature of the harm suffered is important in determining whether a reasonable person would have been aware of a substantial possibility of tortious conduct. Although, in many instances, suffering an untoward result after surgery may put a reasonable person on notice of tortious conduct, certain untoward effects can “mask” tortious conduct. A reasonable person that experiences symptoms that are incidental to a particular medical procedure may not be aware that he or she has been a victim of tortious conduct:

“Normally, knowledge of injury as a result of defendants’ actions would put the injured party on sufficient notice of defendants’ tortious conduct to commence the running of the statute. However, immediate, adverse side effects commonly result from medical treatment given to gain long-range and more important benefits. Knowledge of momentary, adverse effects which are immediately controlled would not put plaintiff on notice as a matter of law of tortious conduct by defendants.” Frohs v. Greene, supra, 253 Or at 7.

Assurances made by the attending physician may also have a bearing on whether a reasonable person would be aware of a substantial possibility of tortious conduct. See id. at 6-7 (statements by physicians considered in assessing whether the plaintiff had discovered claim). A physician’s assurances may be particularly influential on a plaintiff because the physician-patient relationship is “a relationship of trust and confidence * * * in which continued treatment or other resort to the skills of the defendant is required.” Cavan v. General Motors, 280 Or 455, 458, 571 P2d 1249 (1977). If the physician makes a representation on which a plaintiff reasonably relies, it could have the effect of delaying a reasonable person from becoming aware of a substantial possibility of tortious conduct.⁹

A genuine issue of material fact exists in this case as to when plaintiff in the exercise of reasonable care should have discovered a substantial possibility of tortious conduct.¹⁰ Plaintiffs symptoms were not so clearly unrelated to the procedure performed that as a matter of law a reasonable person would believe that the cause was tortious conduct. In addition, Parsons assured plaintiff that the numbness and loss of use that plaintiff experienced in his left arm was temporary. The assurance raises a genuine issue of fact as to its effect upon a reasonable person. The fact that the assurance came after surgery, rather than before, did not put plaintiff on notice as a matter of law of tortious conduct. Nor can we say that plaintiff was, as a matter of law, unjustified in relying on Parsons’s assurances. As this court stated in Schiele v. Hobart Corporation, supra, 284 Or at 491, “[w]e cannot * * * say as a matter of law that anyone who is optimistic about his condition’s taking a turn for the better is unreasonable. ” ¹¹

Defendants further argue that plaintiffs negligent surgery claim is barred as a matter of law because plaintiff s informed consent claim was barred by the statute of limitations. The Court of Appeals held that plaintiffs informed consent claim was barred by the statute of limitations because “[tjhat claim accrued when plaintiff discovered that he had lost the function of his arm. He knew at that time that he had not been warned of that risk.” Gaston v. Parsons, supra, 117 Or App at 558. Because both claims stem from defendants’ alleged negligent conduct in relation to the surgery, and because plaintiff suffered only one harm as a result thereof, defendants argue that plaintiffs claims are a single claim that accrued when plaintiff became aware of the numbness and the loss of use of his left arm. We disagree.

In analyzing when a claim accrues for statute of limitations purposes, the issue is when the plaintiff knew or should have known facts that would make a reasonable person aware of a substantial possibility that he or she had suffered damage as the result of tortious conduct. Informed consent claims typically require knowledge of different facts than do negligent surgery claims. The factual basis for an informed consent claim is that a defendant did not warn a plaintiff before surgery of certain risks and that, regardless of what degree of care was exercised by the defendant, the plaintiff was harmed because, with more complete information, he or she would not have consented to the surgery. See Arena v. Gingrich, 305 Or 1, 4, 748 P2d 547 (1988) (discussing causation element of informed consent claims). In contrast, a negligent surgery claim is based on a defendant’s failure to exercise the appropriate degree of care in the performance of the surgery, regardless of the risks of which the plaintiff has been warned. See Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 14-15, 734 P2d 1326 (1987) (discussing elements of negligence claim based upon “special relationship”). Although in some cases, and this is one, the two claims may be closely linked, materially different facts start the running of the statute of limitations for each claim.

Not only can the claims be factually distinct, but they are also legally distinct. Each claim arises from the violation by a defendant of different legal interests of a plaintiff. Informed consent concerns a plaintiffs right to control what is done to his or her body,¹² while negligent surgery reflects a plaintiffs right to be free from physical harm resulting from negligence in the performance of surgery. Indeed, the two torts have different standards of care that are defined by different statutes. See ORS 677.095 (general duty of care for physicians); ORS 677.097 (informed consent). Awareness of tortious conduct is one element of the discovery rule, and the plaintiff need not identify a particular theory for the statute of limitations to begin to run. However, when two different legally protected interests are at stake, awareness of a violation of one interest does not put a plaintiff on notice as a matter of law of the possible violation of other distinct legally protected interests. Each claim must be analyzed separately to determine if a plaintiff knew or should have known facts that would make a reasonable person aware of a substantial possibility that the legally protected interest had been invaded.

For the purpose of the statute of limitations, an informed consent claim is not the same as a negligent surgery claim. Just because one specification of negligence in a complaint is barred by the statute of limitations, it does not necessarily follow that a specification of negligence having a different factual or legal basis is barred. See Little v. Wimmer, 303 Or 580, 585, 739 P2d 564 (1987) (although three negligence claims arose out of a single automobile collision, claims based on negligent design and construction of intersection were time-barred, but claim based on negligent maintenance was not). In this case, plaintiffs medical negligence claim is not barred as a matter of law as a consequence of his informed consent claim being time-barred.

We hold, therefore, that in this case it is a question of fact for the jury to decide whether plaintiff unreasonably delayed filing this action with regard to the negligent surgery claim. The jury must decide whether, considering all the relevant circumstances, plaintiff was aware or in the exercise of reasonable care should have been aware of a substantial possibility that he had been harmed as the result of tortious conduct. Any other holding would have the effect of saying that as a matter of law a person must file suit within two years of experiencing any difficulties following surgery, regardless of assurances made by the physician. Patients normally should be able to rely on assurances made by their physician. Any other rule would be unfair and unrealistic. The discovery rule is a doctrine of fairness:

“It is manifestly unrealistic and unfair to bar a negligently injured party’s cause of action before he has had an opportunity to discover that it exists. * * * We do not believe that the danger of spurious claims is so great as to necessitate the infliction of injustice on persons having legitimate claims which were undiscoverable by the exercise of ordinary care prior to the lapse of two years from the time of the act inflicting the injury.” Frohs v. Greene, supra, 253 Or at 4.

When a person has major surgery, he or she is at a tremendous informational disadvantage that impedes the opportunity to discover a claim:

“A patient who undergoes an operation is taken into the surgery of a hospital and is given anesthesia which renders him unconscious. He knows nothing of what takes place in the surgery. All of his intimates, such as relatives, friends, and neighbors are excluded — and properly so — from the operating room. Accordingly, all knowledge of what takes place in the course of the operation * * * is exclusively in the possession of the surgeon.” Vaughn v. Langmack, 236 Or 542, 582, 390 P2d 142 (1964) (Rossman, J., dissenting).

The discovery rule takes that into account and strikes an appropriate balance between protecting plaintiffs and defendants.

“The objective of a statutory limitation on the time within which an action may be brought is, in malpractice cases, the protection of medical practitioners from the assertion of stale claims. We do not believe the legislature intended to limit patients asserting malpractice claims, who by the very nature of the treatment had no way of immediately ascertaining their injury, to the same overall period of time that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong. The protection of the medical profession from stale claims does not require such a harsh rule. The mischief the statute was intended to remedy was delay in the assertion of a legal right by one who had slumbered for the statutory period during which process was within his reach.” Berry v. Branner, supra, 245 Or at 312-13.

Our holding in this case does not expose physicians to an unending threat of litigation. We note that in the absence of fraud, deceit, or misleading representation, ORS 12.110(4) provides a statute of repose for medical negligence cases of five years from the date of treatment. Nothing in our holding extends that five-year period.

We conclude that a genuine issue of material fact exists in this case as to when plaintiff discovered or in the exercise of reasonable care should have discovered “injury.” Plaintiffs negligent surgery claim is not barred as a matter of law by the statute of limitations. The trial court erred in granting summary judgment for defendants.

The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is reversed, and this case is remanded to the circuit court for further proceedings.

1 Plaintiffs complaint contains one claim for medical negligence and alleges that defendants were negligent in one or more of four particulars. The first three specifications alleged are that defendants were negligent in performing the surgery. The fourth particular is that defendants failed to obtain plaintiffs informed consent to the surgery.

For clarity, this opinion will refer to plaintiffs claim based on the alleged failure to warn of risks as the “informed consent” claim and to the claim based on negligent performance of the surgery as the “negligent surgery” claim.

2 For the purposes of this appeal, defendants are Drs. Parsons and Coit. Plaintiffs claim against defendant Good Samaritan Hospital was dismissed, and the hospital is not a party in this appeal.

3 ORS 12.110(4) provides:

“An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall 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. However, 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.”

Thus, in the absence of fraud, deceit, or misleadingrepresentation, the statute of repose for medical negligence claims requires an action to be filed within five years of the treatment or surgery. In no event may an action for medical negligence be brought more than ten years after the event or occurrence forming the basis for the claim. ORS 12.115.

4 Because plaintiff has not petitioned for review with regard to his informed consent claim, that claim is not before this court.

5 We decide this case on the basis of the statute of limitations contained in the first sentence of ORS 12.110(4). The parties did not raise any issue regarding the “fraud, deceit or misleading representation” exception contained in the second sentence of ORS 12.110(4). That exception has no application to the present case, however. The “fraud, deceit or misleading representation” provision is an exception to the five-year statute of repose found in the second sentence of ORS 12.110(4). By its terms, the exception is relevant only when “there has been no action commenced within five years [of the treatment] because of fraud, deceit or misleading representation.” Because this action was filed within five years of the surgery, we need not address the meaning of that exception to the statute of repose in ORS 12.110(4).

6 Before Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), this court had held that a claim for negligent injury accrued at the time of the negligence, rather than upon discovery of the injury. See, e.g., Vaughn v. Langmack, 236 Or 542, 390 P2d 142 (1964). Berry dealt with the situation in which a surgeon left foreign objects within a patient. The original statutory version of the discovery rule contained the same limitation. Or Laws 1967, ch406, § 1. In Frohs v. Greene, 253 Or 1, 452 P2d 564 (1969), this court expanded the holding in Berry to cover negligent treatment and diagnosis as well. ORS 12.110(4) was later amended to address all injuries to the person from medical negligence. Or Laws 1969, ch 642, § 1. See Duncan v. Augter, 286 Or 723, 596 P2d 555 (1979) (discussing legislative history of ORS 12.110(4)).

7 See supra note 6.

8 Although “tortious conduct” is an element of injury under the discovery rule, a plaintiff does not need to identify a particular theory of recovery before the statute of limitations begins to run. All that is required is that the plaintiff discover that some invasion of the legally protected interest at stake has occurred. For example, when a plaintiff discovers that he or she has wrongfully been harmed by the conduct of another, he or she need not further discover whether the defendant’s act was intentional or negligent for the statute oflimitations to begin to run. Discovery that the plaintiffs legally protected interest to be free from physical harm at the hands of another had been infringed is sufficient to satisfy the tortious conduct element of the discovery rule.

9 The significance of the physician’s statements is that they are circumstances to be considered in determining the reasonableness of the plaintiff’s actions. Any statement made by the physician (true, untrue, misleading, or otherwise) is to be considered along with other circumstances {e.g., the nature of the harm, the nature of the surgery performed) in evaluating when a plaintiff reasonably should have discovered that he or she has suffered a legally cognizable harm.

Our decision is not based upon the statute of repose in the second sentence of ORS 12.110(4), which contains express language regarding discovery of “fraud,” “deceit” and “misleading representations.” As we have noted, the “fraud, deceit or misleading representation” language applies only to the statute of repose set forth in the second sentence of ORS 12.110(4) and does not apply, if at all, until five years after the surgery or treatment. See supra note 5. Moreover, the legal inquiries under the two sentences of ORS 12.110(4) are different. Under the first sentence of ORS 12.110(4) (limitations), the statute does not begin running until the plaintiff discovers or in the exercise of reasonable care should have discovered “injury.” The “discovery rule” operates to delay the running of the statute if the plaintiff reasonably fails to discover “injury” for any reason. Under the second sentence of ORS 12.110(4) (repose), the statute begins to run when the plaintiff discovers or in the exercise of reasonable care should have discovered the fraud, deceit or misleading representation. The “discovery rule” in the second sentence operates to delay the statute only if the reason for the plaintiffs delay is fraud, deceit, or misleading statement. In this case, we speak only of the utility of the physician’s representations in analyzing discovery of “injury” for the purposes of the statute of limitations in the first sentence of ORS 12.110(4).

10 A material question of fact also exists as to whether plaintiff had actual knowledge of legal injury more than two years before bringing this action. Viewing the record in the light most favorable to plaintiff, we cannot say that as a matter of law he had such knowledge.

11 Defendants argue that Duyck v. Tualatin Valley Irrigation Dist., 304 Or 151, 742 P2d 1176 (1987), dictates a different result in this case. We disagree. That case was a negligent misrepresentation case decided under a different statute, ORS 30.275. Moreover, the language in Duyck upon which defendants rely for their argument is dicta.

12 This interest was aptly stated by Justice Cardozo for the New York Court of Appeals:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

Schloendorff v. New York Hospital, 211 NY 125, 129, 105 NE 92 (1914), overruled on other grounds, Bing v. Thunig, 2 NY2d 656, 163 NYS2d 3, 143 NE2d 3 (1957).

Informed consent and negligent surgery claims have different origins. Claims for lack of informed consent were originally based on a theory of battery, but more recently have been considered a form of negligence claims. Getchell v. Mansfield, 260 Or 174, 177-78, 489 P2d 953 (1971). See also 4 Speiser, Krause & Gans, The American Law of Torts §§ 15:70-15:77 (1987) (discussing doctrine of informed consent).