O'BRIEN v. State

799 P.2d 171, 104 Or. App. 1, 1990 Ore. App. LEXIS 1821

• Court: Court of Appeals of Oregon
• Decided: October 17, 1990
• Docket: 8802-00742; CA A60568
• Status: Published

Opinions

RICHARDSON, J.

Plaintiff brought this medical malpractice action under the Oregon Tort Claims Act (OTCA), ORS 30.260 to ORS 30.300, for injuries that she allegedly sustained at the Oregon Health Sciences University (OHSU). The trial court dismissed her complaint¹ on the ground that ORS 12.110(4), the five-year statute of ultimate repose for malpractice actions, barred her claim. We reverse.

Plaintiff alleges that, when she was a patient at OHSU in July, 1980, or February, 1981, a catheter was inserted into her blood vessel and heart. When defendant removed the catheter, a portion of it broke off and remained in her heart. Defendant did not notice that the catheter had not been completely removed. On December 4, 1986, defendant noticed for the first time that a part of the catheter was still in plaintiffs heart. It did not inform plaintiff of that fact until August, 1987. Plaintiff filed this action on February 9,1988.

ORS 30.275(8), as amended by Oregon Laws 1981, chapter 350, § 1, provides:

“Except as provided in ORS 12.120 and 12.135, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”

Section 2 of the 1981 Act provides that the

“amendments to ORS 30.275 by section 1 of this Act do not permit commencement of an action on or after the effective date of this Act in respect to a claim for damages arising out of an accident or occurrence before the effective date of this Act for which notice was not presented before the effective date of this Act as required by ORS 30.275 and the time for presenting that notice prescribed by ORS 30.275 expired before the effective date of this Act.”

Plaintiff argues that her action was timely commenced, because ORS 30.275(8), as amended in 1981, precludes the application of the repose provision in ORS 12.110(4) to OTCA actions. Defendant argues that the 1981 amendment does not apply to this case; that, even if the amended version applies, ORS 30.275(8) does not make ORS 12.110(4) inapplicable; and that the action is also barred by ORS 30.265(3)(d).

Defendant relies on the phrase “claim for damages arising out of an accident or occurrence before the effective date of this Act,” section 2, and argues that, because the allegedly negligent conduct occurred before the effective date, the amendment does not apply. However, when section 2 is read in its entirety, it could have the effect defendant suggests only if the time for presenting the notice had expired before January 1, 1982, the effective date of the Act. Or Laws 1981, ch 350, § 4. Under former ORS 30.275(1), a person asserting a tort claim against the state was required to give written notice of the claim within 180 days “after the alleged loss or injury.” The 180-day period did not begin to run until a plaintiff had “a reasonable opportunity to discover his injury and the identity of the party responsible for that injury.” Adams v. Oregon State Police, 289 Or 233, 239, 611 P2d 1153 (1980). It is undisputed that plaintiff neither knew nor had reason to know of her claim until after January 1, 1982. Therefore, she was not required to give defendant notice of her claim before that date. The amendment applies to this action.

Defendant next argues that, even under the amended ORS 30.275(8), plaintiffs action is subject to ORS 12.110(4), which provides that, at the latest, an action to recover damages for injuries arising from medical or surgical treatment “shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based.” Because the treatment of which plaintiff complains occurred by February, 1981, and this action was not brought until February, 1988, defendant asserts that the claim is barred.

Plaintiff contends that ORS 12.110(4) is made inapplicable to OTCA claims by the phrase in ORS 30.275(8) that its limitation period applies “notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action.” Defendant argues that ORS 30.275(8) was intended to limit, not expand, the time for bringing claims against the state. Therefore, it contends, the period of ultimate repose in ORS 12.110(4) should apply in OTCA actions, which would be time-barred by that statute, but not by ORS 30.275(8) itself. See note 4, infra.

We agree with plaintiff that the “notwithstanding” clause of ORS 30.275(8) makes ORS 12.110(4) inapplicable to this action. We said in Lawson v. Coos Co. Sch. Dist. #13, 94 Or App 387, 390, 765 P2d 829 (1988):

“Plaintiff contends that the ‘notwithstanding’ language of ORS 30.275(8) applies only to provisions in chapter 12 and other statutes that limit commencement of an action. Therefore, because ORS 12.160 extends the time for commencement of an action, it is not subject to the two-year time limit. We disagree. The statute states two exceptions to the two-year limitation: ORS 12.120 and ORS 12.135. Immediately following the exception language, the statute provides that the two-year limitation applies ‘notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action.’ (Emphasis supplied.) Further, the statute sets out the ‘notwithstanding’ provisions in the alternative: The time limit applies (1) notwithstanding any other provision of ORS chapter 12 and (2) notwithstanding any other statute providing a limitation on the commencement of an action.” (Emphasis in original; footnotes omitted.)

We therefore concluded that the minor plaintiffs time for bringing the action was not tolled by ORS 12.160. Similarly, ORS 12.110(4) is a provision of ORS chapter 12, and ORS 30.275(8) precludes its application to OTCA claims.²

The dissent interprets the “notwithstanding” clause differently and suggests that Lawson should be overruled. However, the dissent shows, at most, that there is a second tenable way in which the statute can be interpreted, not that the interpretation in Lawson is untenable or incorrect. It is unwise to overrule as recent a case as Lawson and to arrive at the opposite answer to the same question, simply because, in the abstract, either answer might be logically supportable if we were writing on a clean slate. The slate is not clean, and the dissent offers no compelling reason to wipe it clean. Lawson is controlling.

Defendant argues, and the dissent appears to agree, that, because ORS 30.275(8) is intended to limit rather than expand the state’s liability, it is contrary to the statutory purpose to construe the language as making an ultimate repose provision that is available to private defendants unavailable to the state. The specific issue in Lawson was whether the “notwithstanding” clause prevented the plaintiff from invoking the minority tolling provision of ORS 12.160. Presumably, our affirmative answer to that question accords with defendant’s understanding of the statutory purpose. However, the language of the “notwithstanding” clause leaves no room for construing it to apply differently to non-limitation provisions in ORS chapter 12 on the basis of whether they are favorable or unfavorable to the state. The clause applies to all of them or to none. If, as defendant and the dissent implicitly maintain, the statute was meant to make all of the advantageous provisions applicable to the state, but none of the disadvantageous provisions, the statutory language cannot be read to achieve that meaning, and defendant’s recourse is to the legislature. ORS 12.110(4) does not apply to and does not bar this action.³

Finally, defendant argues that plaintiffs claim is barred by ORS 30.265(3)(d), which provides:

“(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:

* * * *

“(d) Any claim which is limited or barred by the provisions of any other statute.”

Defendant asserts that ORS 12.110(4) is “another statute” that limits or bars plaintiffs action. We reject this argument, too.

In interpreting a statute, we consider it as a whole. Davis v. Wasco IED, 286 Or 261, 267, 593 P2d 1152 (1979). Subsection (1) of ORS 30.265 provides for waiver of sovereign immunity, subject only to the limitations provided in the OTCA. Subsection (2) provides immunity to the state for any action of an officer, employee or agent who is immune from liability. Subsection (3) sets out various other specific immunities, including, inter alia, claims for injuries covered by the Workers’ Compensation Law, claims in connection with assessment and collection of taxes, for claims based on the performance of discretionary functions, as well as claims that are “limited or barred by the provisions of any other statute.” Subsections (4) through (8) similarly limit the state’s liability in various ways.

In Swanson/Martin v. Coos County, 4 Or App 587, 591, 481 P2d 375 (1971), we stated that the predecessor to ORS 30.265(3)(d)

“relates to particular types of claims which by various statutes relating thereto are limited or rendered immune.

“This construction does not affect the application of ORS 30.265(2)(f) [currently ORS 30.265(3)(d)] to the multitude of Oregon statutes which give to various public bodies specific immunity as to particular types of tort claims.”

See also Lansing, “The King Can Do Wrong! The Oregon Tort Claims Act,” 47 Or L Rev 357, 363 (1968).

We conclude that ORS 30.265(3)(d) is a substantive immunity statute. It does not relate to statutory limitations or time bars; they are dealt with elsewhere in OTCA. Defendant argues that reading ORS 30.265(3)(d) in that way renders it meaningless. On the contrary, the paragraph has ample substantive meaning without stretching its language as defendant would have us do. There are numerous statutes outside OTCA that provide immunity for public bodies. See, e.g., ORS 399.225 (members of state military immune for acts or omissions done in the performance of their duty); ORS 420.040 (juvenile training schools not liable for damages on account of misconduct of a student of the school). ORS 30.265(3)(d) assures that those immunity provisions are not waived by OTCA.

Moreover, defendant’s interpretation of ORS 30.265(3)(d) would render ORS 30.275(8) senseless or meaningless. ORS 30.265(3)(d) would simultaneously incorporate ORS 30.275(8) itself along with the statutes of limitations that ORS 30.275(8) makes inapplicable to OTCA actions. It is clear that the legislature could not have intended ORS 30.265(3)(d) to supplement the limitations provision of ORS 30.275(8). ORS 30.265(3)(d) pertains to substantive immunity; ORS 30.275(8) is the statute of limitations for OTCA.

Plaintiff brought her action within two years after she discovered her injury.⁴ It was timely under ORS 30.275(8), and the trial court erred in dismissing her claims.

Reversed and remanded.

1 Plaintiffs complaint alleged three negligent acts. Defendant filed a Motion to Dismiss/Strike two of the three specifications of negligence. When the trial court granted defendant’s motion, the parties stipulated to an order dismissing plaintiffs third allegation, and the court entered a final judgment.

2 It is not wholly clear whether either or both parties proceed from the understanding that the repose provision in ORS 12.110(4) is a “limitation on the commencement of an action,” as well as a “provision of ORS chapter 12.” In either event, it comes within the “notwithstanding” clause, as we construed it in Lawson. We therefore need not decide whether the statute of ultimate repose is a “limitation” statute within the meaning of ORS 30.275(8).

3 Our conclusion in Lawson and here are further supported by the fact that ORS 30.275(8) specifically retained a statute of ultimate repose for certain claims under OTCA. ORS 12.135 provides, among other things, for a 10-year ultimate repose period for actions involving certain work on real property. Thus, the legislature knew how to retain statutes of ultimate repose in OTCA, when it chose to do so. If it had intended the ultimate repose provision for medical malpractice claims to apply under OTCA, it easily could have retained ORS 12.110(4) as well.

4 The “discovery rule” is applicable to actions under OTCA, see Dowers Farms v. Lake County, 288 Or 669, 607 P2d 1361 (1980), and defendant does not contend otherwise.