Sculace v. Rogers

619 P.2d 1316, 49 Or. App. 433, 1980 Ore. App. LEXIS 3726
CourtCourt of Appeals of Oregon
DecidedNovember 24, 1980
DocketNo. A7711-15661, CA 15296
StatusPublished
Cited by4 cases

This text of 619 P.2d 1316 (Sculace v. Rogers) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sculace v. Rogers, 619 P.2d 1316, 49 Or. App. 433, 1980 Ore. App. LEXIS 3726 (Or. Ct. App. 1980).

Opinion

CAMPBELL, J.

Plaintiff filed this medical malpractice action against defendants seeking damages for injuries she suffered while undergoing surgery. Trial was held, and the jury by special verdict found that plaintiff did not file her complaint within the time required by law. The central issue on appeal is whether plaintiff has preserved her claim of error that the jury was not properly instructed regarding the applicable statute of limitations, ORS 12.110(4).

Plaintiff underwent open heart surgery at Providence Hospital in Portland, Oregon, on October 22, 1975. Defendant Richard C. Rogers, M.D. was the chief surgeon for the procedure and defendant Michael Henry, M.D., was the anesthesiologist. The surgery began about 7:30 a.m. and proceeded satisfactorily. About 1:15 p.m., near the end of the surgery, it was discovered that plaintiff’s left forearm was swollen, discolored and blistered. Blood and platelets had been pumped into plaintiff’s left arm intravenously. At some point, the intravenous needle slipped outside the vein, thereby allowing the blood and platelets to infiltrate into the arm tissue. The placement of a blood pressure cuff on plaintiff’s upper left arm served to prevent the infiltrating materials from moving up the arm. The circulation to plaintiff’s arm was impaired, resulting in damage to the arm’s nerve structure and causing plaintiff pain and a burning sensation.

Immediately after the surgery, Dr. Rogers spoke to plaintiff’s husband and told him that something had happened to plaintiff’s arm, that an intravenous needle had come out and plaintiff’s arm was burned. He also told plaintiffs husband that he did not know how it had happened, that he had been busy with the actual surgery and had had nothing to do with the arm problem. Plaintiff’s husband had no further conversations with Dr. Rogers about the damage to his wife’s arm while she was in the hospital.

After the surgery, when plaintiff woke up in the recovery room, she knew something had happened to her arm. Two or three days after the surgery, her husband talked with her, and even though she was heavily sedated [436]*436she told him that her arm hurt and asked what had happened. He testified that he soft-pedalled the problem and simply told her that "you’ve got a little burning sensation.” About a week after the surgery, toward the end of October, Dr. Rogers spoke to plaintiff about her arm. He told her that he had nothing to do with the arm problem, and that it was not his fault. Both Dr. Rogers and plaintiff’s husband explained generally about the infiltration of material caused by dislocation of the intravenous needle. No one explained anything further to plaintiff about her arm before she left the hospital on November 5, 1975.

Plaintiff filed her complaint on November 3, 1977.

The controlling statute, ORS 12.110(4), provides in part:

"(4) An action to recovér 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. * * *”

The issue presented to the jury was whether plaintiff discovered, or should have discovered, her injury prior to November 3, 1975. The trial court instructed the jury on ORS 12.110(4) as follows:

"It is claimed by the defendants and denied by the plaintiff that the plaintiff did not file her complaint within two years from the date that her cause of action arose. In this connection, I instruct you that the statutory law of the State of Oregon provides that a cause of action for medical malpractice arises when the injury is first discovered or in the exercise of reasonable care should have been discovered, and a complaint for that injury must be filed within two years from that date. An injury is discovered when a reasonably prudent person associates her 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.
«* * * * * » (Emphasis supplied.)

The emphasized portion of the court’s instruction was derived from language in Schiele v. Hobart, 284 Or 483, 587 P2d 1010 (1978). In that case the court was presented with the problem of determining "when the two-[437]*437year statute of limitations contained in ORS 12.110(1) begins to run * * * on a claim alleging that defendants’ negligence caused an occupational disease.” 284 Or at 487. The court held that, in an occupational disease case where the plaintiff’s actionable condition is alleged to be a permanent injury, the statute of limitations "begins to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition.” 284 Or at 490.

Plaintiff claims that the court, by using the Schiele standard, improperly instructed the jury as to the application of the statute of limitations in a medical negligence case. She contends that the trial court’s instruction only required the jury to find that she had notice of the harm suffered and its cause; it did not require, as it should have, the jury to find that she had notice of any negligence on the part of defendants more than two years prior to the date she filed her complaint. In essence her argument is that delayed discovery of any wrongful conduct will further postpone commencement of the statute of limitations even though the injured party has notice of the existence of the harm and its cause. Plaintiff relies principally on Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), and Frohs v. Greene, 253 Or 1, 452 P2d 564 (1969).

Assuming for the sake of argument that the instruction given by the trial court was erroneous, defendants contend that plaintiff failed to preserve her claim of error on appeal. At trial plaintiff did not take an exception to the challenged instruction for the reason she now asserts. She did, however, request an alternate instruction and assigns as error the trial court’s failure to give that instruction.1

[438]*438In some situations, a requested instruction may be sufficient to preserve error on appeal. Crow v. Junior Bootshops, 241 Or 135, 404 P2d 789 (1965). This rule, however, was severely limited in Holland v. Srs. of St. Joseph, Seeley, 270 Or 129, 522 P2d 208, 526 P2d 577 (1974). The court stated:

"In Crow the trial judge gave an instruction to the effect that contributory negligence was not a bar to plaintiff’s recovery but could be considered only in mitigation of damages. The instruction was clearly erroneous because at that time contributory negligence was a bar to recovery. * * *
* * * *

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Duncan v. Augter
661 P.2d 83 (Court of Appeals of Oregon, 1983)
Hoffman v. Rockey
639 P.2d 1284 (Court of Appeals of Oregon, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
619 P.2d 1316, 49 Or. App. 433, 1980 Ore. App. LEXIS 3726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sculace-v-rogers-orctapp-1980.