Gaston v. Parsons

844 P.2d 941, 117 Or. App. 555, 1993 Ore. App. LEXIS 24
Court of Appeals of Oregon·Decided January 6, 1993·No. 9011-07199; CA A71991·Published·Cited by 8 cases

Opinions

[557]*557EDMONDS, J.

In this medical malpractice case, plaintiff appeals from a summary judgment for defendants.1 The trial court concluded, as a matter of law, that the action is time-barred under ORS 12.110(4). Plaintiff argues that summary judgment is improper, because there is a genuine issue of material fact. ORCP 47C. We reverse.

The uncontroverted summary judgment record indicates that, before seeking medical attention from defendants, plaintiff was a partial quadriplegic who still had significant function in his left arm, shoulder, wrist and hand. After developing spasms in his lower extremities, he sought treatment from defendants. Parsons suggested a procedure that involved injecting a chemical solution into plaintiffs spine to deaden the nerves causing the spasms. After plaintiff was informed of certain risks,2 the procedure was performed on March 13, 1987.

The day after the procedure, plaintiff noticed that he had lost feeling in his left arm. Parsons assured him that the loss of feeling was a transitory complication that could last from six months to two years and that nothing was said to him that would give him “any reason to believe [that his] treatment had been negligent or incorrectly performed.” After his arm had remained dysfunctional for more than two years, plaintiff sought legal advice in 1989. He filed a complaint on November 14, 1990. The complaint contains one cause of action for negligence, which alleges that defendants were negligent in failing to obtain plaintiffs informed consent and in performing the procedure.3 It alleges that Parsons [558]*558assured him repeatedly that the function of his arm “would return within two (2) years when the effects of the intrathecal solution would wear off.”

We review the record in the light most favorable to plaintiff. Defendants must show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Seeborg v. General Motors Corporation, 284 Or 695, 699, 588 P2d 1100 (1978).

ORS 12.110(4) provides, in part, that an action for medical malpractice must 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.” One of plaintiffs claims is that defendants were negligent, because they failed to obtain his informed consent. That 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. As we said in Hoffman v. Rockey, 55 Or App 658, 664, 639 P2d 1284, rev den 292 Or 722 (1982), “[PJlaintiff s discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems — permanent or not.” We agree with the trial court that, as a matter of law, the claim based on lack of informed consent is time-barred.

However, plaintiffs negligence claim is not limited to a claim of lack of informed consent. The fact that one claim is barred by the statute does not necessarily mean that the other claim is also barred. See Little v. Wimmer, 303 Or 580, 583-85, 739 P2d 564 (1987). Plaintiff alleges that the procedure was performed negligently and that his discovery of the negligence was delayed until 1989 because of Parsons’ assurances. Accordingly, he argues that the claim is not barred, because he filed it within two years after the date when, in the exercise of reasonable care, he should have discovered the negligence. Defendants argue that, because plaintiff knew the identity of the tortfeasor, knew that he had been injured and knew of the cause of his injury on the day after the procedure, the time began to run in 1987.

In Hoffman v. Rockey, supra, 55 Or App at 663, we discussed the “discovery” rule:

“A plaintiff should discover that he has a cause of action when he realizes (1) thát he has been injured, (2) that the [559]*559injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent.”

We held that, because there was evidence that the defendant surgeon had assured the plaintiff that the condition of his leg was progressing, the jury should have been instructed that the statute did not start to fun until the plaintiff, in the exercise of reasonable care, should have discovered the negligence.

Despite defendants’ arguments to the contrary, that holding is consistent with the holding in Duyck v. Tualatin Valley Irrigation Dist., 304 Or 151, 742 P2d 1176 (1987), where the court phrased the third part of the test in terms of causation instead of negligence. It held that the statute does not begin to run when the ‘ ‘plaintiff is unaware of the cause of his injury * * * [but] begins to run when a reasonable person would perceive the role which the defendant has played in inducing that condition.” 304 Or at 161; see also Stephens v. Bohlman, 314 Or 344, 838 P2d 600 (1992). Regardless of how the test is phrased, the question is: When did plaintiff have reason to know that defendants’ negligence may have been the cause of the loss of feeling in his arm?

Viewing the record in the light most favorable to plaintiff, a jury could conclude that plaintiff reasonably relied on the doctor’s assurances that he would regain the use of his arm within two years and that the dysfunction was a non-negligent result of the procedure. It could also find that those assurances reasonably delayed the investigation of his injury and that he did not obtain facts to put him on notice of defendants’ negligent performance of the procedure until 1989. This record differs from Raethke v. Oregon Health Sciences Univ., 115 Or App 195, 837 P2d 977 (1992), on which defendants rely. In that case, the plaintiff was aware that her condition was the result of her physician’s negligence, but did not pursue her claim in a timely fashion, because she thought that she was only infertile temporarily. Here, there is a question of fact as to when plaintiff should reasonably have discovered that the cause of his injury was defendants’ negligence.

Because one of plaintiff’s claims of negligence is time-barred as a matter of law, the dissent would hold that [560]*560the other claim alleging the negligent performance of the procedure is also barred. The dissent says that our holding conflicts with our precedents and that we misunderstand the holding in Hoffman v. Rockey, supra. In that case, the plaintiffs complaint alleged a “failure to warn of the risk claim” and that an osteotomy had been improperly performed and that an infection had not been treated properly with antibiotics. The trial court directed a verdict on the “failure to warn” claim, because the Statute of Limitations had run, and submitted the other claims to the jury, which returned a verdict for the defendant. We held that the refusal to give a requested instruction to the jury was error. The plaintiffs other assignment of error was that the trial court erred in directing a verdict on the “failure to warn” claim.

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Gaston v. Parsons, 844 P.2d 941, 117 Or. App. 555, 1993 Ore. App. LEXIS 24 (Or. Ct. App. 1993).

844 P.2d 941 (Gaston v. Parsons) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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