392 P.3d 374
Or. Ct. App.2017Background
- Plaintiff treated at Salem Hospital in Aug 2011 for severe hyponatremia; received sodium-replacement therapy that allegedly raised serum sodium >10 mmol/L in 24 hours, producing central pontine myelinolysis (CPM).
- Initial malpractice suit filed Nov 19, 2012 against hospital and several individuals; on Oct 30, 2014 plaintiff filed a third amended complaint adding Dr. Ismail and Salem Pulmonary Associates (SPA) as new defendants.
- Defendants moved to dismiss under ORCP 21 A(9) arguing the claim against the newly added defendants was time-barred by the two-year medical-malpractice statute (ORS 12.110(4)).
- Plaintiff sought to amend to plead delayed discovery and a disabling mental condition to toll the limitations period; the trial court denied amendment and dismissed with prejudice.
- On appeal, the court reviewed only the face of the operative (third amended) complaint and assumed its allegations true; the central question was whether the complaint showed on its face that the claim accrued more than two years before amendment.
- The court reversed the dismissal, holding the complaint did not on its face establish that plaintiff discovered or reasonably should have discovered the injury, its tortious cause, or the identities of Ismail and SPA outside the statutory period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third amended complaint shows on its face that plaintiff’s claim against newly added defendants accrued more than two years earlier | The complaint need not anticipate affirmative defenses; it does not show plaintiff discovered the claim or defendants’ roles >2 years before amendment | The complaint is "patently time-barred" because it lacks allegations that delayed discovery occurred; plaintiff should have pleaded facts to avoid dismissal | The complaint did not show on its face that the claim was untimely; dismissal under ORCP 21 A(9) was error |
| Whether plaintiff was required to plead delayed discovery or tolling facts in the complaint to avoid dismissal | Plaintiff: no; pleading a claim suffices and limitations is an affirmative defense | Defendants: yes; absent such allegations the complaint should be assumed untimely | Plaintiff was not required to plead delayed discovery when the complaint does not otherwise show the statute ran |
| Whether SPA’s identity/liability was "inherently discoverable" because an original defendant (Johnson) was named earlier | Plaintiff: relationships among medical providers are not readily apparent to patients; complaint does not show SPA was discoverable earlier | Defendants: SPA should have been discovered earlier (e.g., service at SPA offices, public info) | Court will not consider extrinsic materials; the complaint does not establish SPA was inherently discoverable |
| Whether the face-of-complaint standard permits resolution of discovery-date disputes at dismissal stage | Plaintiff: discovery timing is often a factual question not resolvable on ORCP 21 A(9) review | Defendants: facts alleged allow inference plaintiff should have discovered earlier | Court: where complaint does not compel a legal conclusion that claim is untimely, discovery-timing is a factual question for later stages |
Key Cases Cited
- Gaston v. Parsons, 318 Or 247 (1994) (codifies discovery rule for accrual of medical-malpractice claims)
- Hewitt v. Thomas, 210 Or 273 (1957) (statute of limitations is an affirmative defense; dismissal only if complaint shows it ran)
- Munsey v. Plumbers’ Local No. 51, 85 Or App 396 (1987) (complaint need not affirmatively show timeliness; suffices that it does not reveal untimeliness)
- Bodunov v. Kutsev, 214 Or App 356 (2007) (face-of-complaint review rejects assumptions that facts were inherently discoverable)
- Guirma v. O’Brien, 259 Or App 778 (2013) (discovery-timing often a factual question not resolvable on ORCP 21 A(9))
- Doe v. Lake Oswego Sch. Dist., 353 Or 321 (2013) (whether plaintiffs should have recognized abuse as wrongful is a factual question)
- Gehrke v. CrafCo, Inc., 143 Or App 517 (1996) (identity of a property owner may be inherently discoverable in some contexts)