Gaston v. Parsons

31, 1993, Appeals affirmed on Court of August decision of the Argued and submitted reversed, remanded to judgment and case grounds; of the circuit court different January proceedings reconsideration denied court for further circuit February GASTON, M. Timothy Respondent Review, M.D., PARSONS, William R. Coit, M.D.,

William E. Review, Petitioners on HOSPITAL GOOD SAMARITAN CENTER, AND MEDICAL an Oregon corporation,

Defendant. S40098) (CC CA A71991; SC A9011-07199; 864 P2d 1319 Wagner, Portland, Schroer, Hoffman, Hart & M. Janet petitioners argued her review. With behalf of on the cause on Wood, petition Landis, review was David C. for on the Landis, & Portland. Tatum, Wonacott Alex- Alexander, Burt, Swanson, Lathen, Michael J. argued the cause and filed McCann, Salem, ander & respondent petition response on behalf of review review. Sugerman, Sugerman, Portland, filed F. of Paul &

David Lawyers Oregon Trial curiae on behalf of amicus brief Association. Keating Abbott, Hallmark, & Hallmark, L.

William Oregon Portland, of amicus curiae P.C., filed brief on behalf Association. Medical Hoomissen, Gillette, Van Carson, Justice, Chief

Before Fadeley, Unis, Graber, Justices, Peterson, Senior tempore. Judge, pro Justice J.

UNIS, pro tempore, Judge, Peterson, dissented Senior Justice joined. opinion Graber, J., in which filed an and 250

UNIS, J.

The issue in this case is when the statute of limita- tions to run in a medical negligence action. Plaintiff filed this action in November seeking for damages harm as suffered result defendants’ alleged negligence in with connection a surgical procedure in performed March (1) 1987. Plaintiffs action was based both on defendants’ failure to obtain plaintiffs informed consent and defen- dants’ negligent performance of surgery.1 Defendants2 moved for summary on the judgment ground had failed to file the action within the two-year statute of 12.110(4).3 limitations, ORS The trial granted court motion and entered judgment for defendants. The Court reversed, Appeals holding that the informed consent claim barred, was but claim negligent was not surgery barred because the statute of limitations did not start to run on that claim until plaintiff knew or should have known of Parsons, Gaston v. defendants’ negligence. 117 Or App (1993). 941 P2d We allowed petition defendants’ for complaint Plaintiffs one for negligence alleges contains claim medical negligent particulars. defendants were one or of four more The first three specifications alleged negligent performing surgery. are that defendants were particular plaintiffs fourth is that defendants failed to obtain informed consent to the clarity, opinion alleged For this refer will claim based on failure negligent to warn as the of risks “informed consent” claim and to the based on claim performance surgery “negligent surgery” as claim. purposes appeal, For the of this defendants are Drs. Parsons and Coit. dismissed, against Hospital Good Plaintiffs claim defendant Samaritan hospital appeal. party is not this 12.110(4) provides: damages injuries person arising “An action recover from

medical, surgical treatment, operation or dental omission shall be commenced within from date when is first discovered or in the However, exercise of reasonable care should have been discovered. notwith- 12.160, provisions every standing the of ORS such action shall commenced treatment, operation upon within five date of omission or, if which the action is based there has been no action commenced within five years fraud, misleading representation, because of deceit or then within two fraud, years misleading representation from the date such deceit or is discovered in have been or the exercise of reasonable care should discovered.” fraud, Thus, deceit, misleadingrepresentation, in the absence of or the statute years of repose negligence requires an action to be filed within five for medical claims surgery. may negligence no event action for the treatment In medical forming years the the brought than the event basis for more ten after or occurrence claim. 12.115. ORS

251 Appeals on We decision the Court review.4 different affirm grounds. summary judgment, a we determine

On review genuine issue material fact exists and whether whether a judgment moving party law. is entitled to as matter of Murphy, C; 610, 613, P2d 47 v. 296 Or 678 ORCP Christensen (1984). ruling reviewing trial on a motion court’s summary judgment, we view the evidence all reason- for light non-moving to the inferences in the most favorable able case). (plaintiff Stephens party Bohlman, in this (1992). 346-47, P2d 344, partial quadriplegic was a whose func- Plaintiff sought tioning left limb was his arm. Plaintiff medical treat- body. spasms muscle in his lower ment from defendants for (Parsons) suggested procedure Defendant Parsons injection spinal of a chemical solution to deaden involved causing spasms. nerves that were the muscle Before the surgery, plaintiff certain Parsons informed risks possible procedure, risk of loss of function but not performed procedure plaintiffs Defendants arm. plaintiff surgery, 12, After noticed that his March 1987. not function. Parsons assured left arm was numb plaintiff did tempor- left arm was that the loss function his ary return in to two and that use of his arm would six months years. his left arm within

Plaintiff did not recover use of surgery. years this action on Novem- Plaintiff filed two negligent allegingthat were both defendants ber failing gery before the sur- informed consent obtain performing negligently Defendants

and in plaintiff’s summary asserting judgment, for moved limitations, ORS statute of claims were barred they two after filed more than were because numb and did not left arm was aware that his became function. arising requires claims actions for within be “commenced medical treatment to

from is first discovered when date regard petitioned informed with his has not review Because claim, court. is not before this that claim consent

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 12.110(4). word is in used ORS We find that a genuine issue of fact does exist.

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

In the text examining and the context of ORS 12.110(4), we note that is not “injury” defined by statute or case law. We also note that “injury” in other appears statutes of limitations. See ORS (general tort); 30.275(8) (tort bodies). ORS claims against public This court has recognized that the rule to each applies of those statutes. See Dowers Farms v. Lake County, 669, 681, 288 Or (1980) (ORS 607 P2d 1361 30.275); U.S. Nat’l Bank v. Davies, (1976) (ORS 274 Or 663, 668-69, 548 P2d 966 12.110(1)). This court’s prior decisions indicate that the use of the word in “injury” statutes of limitations does not refer — ordinary sense is, that harm. physical Instead, those decisions have recognized “injury” is comprised different components, some of which harm, are See, of the identity tortfeasor, and causation. e.g., 5 We decide this case on the basis of the statute of limitations contained 12.110(4). parties first sentence of ORS regarding did not raise issue “fraud, misleading representation” exception deceit or contained the second 12.110(4). exception case, sentence of application present ORS That has no “fraud, misleading representation” however. The provision exception deceit or is an 12.110(4). five-year repose By statute of found in the second sentence terms, exception its is relevant when “there has been no action commenced fraud, within [of treatment] five misleading representa because of deceit or tion.” surgery, Because this action was filed within five of the we need not 12.110(4). meaning exception address the repose of that statute of in ORS (discov County, supra, at 669 288 Or Lake Farms v. Dowers harm); Oregon 233, 239, Police, ery 289 Or State Adams v. (1980) tortfeasor); (identity v. Schiele of the P2d 1153 P2d 1010 Corporation, 483, 490, 587 Hobart harm). (cause of provision, con interpreting we also text of a directly the inter bear of construction sider “rules statutory provision pretation in context.” PGE 611. One Industries, 317 Or at Labor Bureau of have in a statute that that words rule is well-established such meaning given meaning legal are to be well-defined a construing 854, 858, Dumond, 270 Or v. statute. State (1974); Gregg, 311-12, 97 306, 164 Or Cordon v. P2d 32 530 (1940). As used in ORS P2d 414 732, P2d “injury” context, in which ORS In the tort is such a word. 12.110(4) “injury” applies, defined as the “invasion is (Second) legally protected Restatement of another.” interest (1965). 7(1) legally “injury” § words, an is In other Torts cognizable harm. interpreta supports this 12.110

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

However, the text history. legislative unambiguous. consider We therefore at industries, Or Labor Bureau PGE v. See proper (when ambiguous, it is are and context text 611-12 12.110(4) enacted history). first legislative ORS consider § legislature’s 1967, 1967. Or Laws ch 406, 1. The under- standing “injury” of the word at the time that statute was adopted dispositive, subsequent unless amendments have meaning. original altered that version of the statute provided:

“An action to recover damages for injuries to the person where the course any medical, dental, surgical or other professional treatment or operation, any foreign substance flesh, other than blood, bone, is introduced negli- and is gently permitted to remain within the body living of a human person, harm, causing shall be commenced within two from the date when the 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 12.110(4) the action is based.” Former ORS added). (emphasis 12.110(4) original Thus, the version of ORS made clear that “injury” legally was what formed the action, basis for an i.e., cognizable by harm, and “harm” was what was caused “injury,” i.e., untoward effects. codify was intended to by Berry

rule announced this court in Branner, v. 245 Or (1966). Josephs 421 P2d 996 Bear, & Burns (1971).6 examining Berry, 491 P2d 203 we can discern legislature “injury” what the intended the word in ORS 12.110(4). Berry, plaintiff, In this court held that the who pain negligently suffered as a result aof needle left in her following hysterectomy, abdomen was not barred from recovery by as a matter of law the statute of limitations begin because the statute did not to run until the needle was explained: discovered. This court 6 Branner, 307, 421 (1966), Berry Before v. 245 Or P2d 996 this court had held negligent injury negligence, that a claim for accrued at the time of the than rather See, upon discovery injury. 542, e.g., Vaughn Langmack, of the v. 236 Or 390 P2d (1964). Berry surgeon objects foreign 142 with dealt the situation in which a left patient. original statutory discovery within a version of the rule contained the 1967, ch406, Greene, 1, 452 § same limitation. Or Laws 1. In Frohs v. Or P2d 564 253 (1969), expanded holding Berry negligent this court in to cover treatment and 12.110(4) diagnosis injuries as well. ORS was later amended all to address 1969, 642, person negligence. Augter, § ch medical Or Laws 1. See Duncan v. (1979) 12.110(4)). (discussing legislative history 596 P2d 555 Or of ORS accrues to a when she that a cause of action say “To and, time, at the same that it an action thereon maintain may be to have reasonably expected has or can accrues before she her incon- wrong upon patently inflicted is knowledge any of cannot maintain an action before and unrealistic. She sistent wronged, who has been say has one. To to one she knows she remedy, wrong but before the was ascertainable to ‘Youhad a mockery you your remedy,’ makes a you, stripped the law Branner, 245 Or at 312. law.” Berry supra, v. Berry Branner, referred 245 Or at this court In v. holding discovery “wrong” statute of in that the to limitations plaintiff begin until the can does not to run any wrong “reasonably expected to have added.) (Emphasis Similarly, Greene, Frohs inflicted.” (1969), legislature codified 1, 7, 452P2d 564 which the spoke court in terms of “tortious conduct” 1969,7 this begin to run until when it held that the statute does plaintiff notice of defendant’s “tortious conduct.” is on added.) Nothing subsequent (Emphasis amendment of 12.110(4) legislative intent to alter the ORS indicates meaning “injury.” original of the word light the text and the context of ORS history legislative provision, that we hold that the and the “injury,” legislature intended the word as used 12.110(4), legally cognizable mean harm. In the tort con- 12.110(4), legally cognizable if it is a harm is text of ORS “injury,” Therefore, as used the result of tortious conduct. (1) harm; of three elements: in ORS consists (2) causation; tortious conduct.8 legally cognizable particular element of To discover a certainty plaintiff to know to harm, does not need designed particular rule exists. The each element supra note 6. See rule, under the Although conduct” is an element “tortious theory recovery identify particular before the statute plaintiff does not need to required is that discover to run. All that of limitations example, legally protected at stake has occurred. For interest some invasion of the wrongfully harmed the conduct has been discovers that he or she when a another, act was whether the defendant’s need not further discover he or she Discovery begin to run. negligent oflimitations for the statute intentional or physical the hands of harm at legally protected to be free from interest satisfy conduct element of the tortious infringed is had sufficient another been discovery rule. to become aware of a reasonable give plaintiffs opportunity Greene, their claim. See Frohs v. Or at 4 (discovery that claim plaintiff rule affords to discover opportunity exists). Actual that each element present hand, a mere is insufficient suspicion On the other required. a to run. We believe that the statute of begin of awareness between the two extremes is contem quantum Therefore, the statute of limitations statute. plated run when the knows or the exercise have which would make a reasonable care should known facts of a that each possibility reasonable aware substantial person conduct) (harm, causation, and of the three elements tortious exists. In most objective

We that this is an test. emphasize what a should have cases, will concern inquiry cases, In such known in the exercise of reasonable care. ordinary a reasonable person relevant is how inquiry similar situation. would have acted same or prudence Wells, 548, 557, P2d 144 See Woolston v. (reasonable ordinary care means what a reasonable person circumstances). do in the same or similar would prudence a failure to make will be a analysis Relevant to this so. would have done person if a reasonable further inquiry their those on sleep rule does not who protect who, exercising diligence but those rights, that have they are unaware of a reasonable person, expected harm. legally cognizable suffered issue of material genuine consider whether a We now the “tortious in this case as to plaintiffs fact exists Whether a reason harm. cognizable element of legally conduct” a substan would be aware of ordinary prudence able person of fact is a question of tortious conduct tial possibility suffered, the nature of of the harm the nature depends upon relevant circumstances. and other medical procedure, determining is important harm suffered nature of the aware of have been would person a reasonable whether in many Although, conduct. of tortious possibility substantial may put after surgery result an untoward instances, suffering certain conduct, tortious notice of reasonable person A reasonable conduct. tortious can “mask” effects untoward are incidental symptoms experiences medical particular may not be aware that he procedure or she has been a victim of tortious conduct:

“Normally, knowledge of as a result of defendants’ injured put party actions would the on sufficient notice of defendants’ tortious to running conduct commence the However, immediate, the statute. adverse side effects com- monly result from given gain long- medical treatment range and more important Knowledge benefits. of momen- tary, adverse immediately effects which are controlled would not put plaintiff on notice as a matter of law of tortious Greene, by conduct defendants.” Frohs v. supra, 253 Or at 7. Assurances made the by attending physician may also have a on whether a bearing reasonable person would be aware of a substantial possibility of tortious conduct. See id. (statements at 6-7 by physicians considered in assessing claim). whether had plaintiff discovered A physician’s assurances may influential particularly on plaintiff because the physician-patient is “a relationship relationship * * * of trust and confidence in which continued treatment or other resort to the skills of the defendant is required.” Cavan (1977). Motors, v. General 455, 458, 280 Or 571 P2d 1249 If physician makes representation on which a plaintiff relies, it reasonably could have the effect of a reason delaying able aware becoming of a substantial possibility t.9 of tortious conduc significance physician’s they The of the statements are circumstances determining Any plaintiff’s to be considered in the reasonableness of the actions. otherwise) (true, untrue, physician misleading, statement made is to be along harm, {e.g., considered with other circumstances the nature of the the nature surgery performed) evaluating plaintiff reasonably in when a should have legally cognizable he discovered that or she has suffered a harm. upon repose Our decision is not based statute of second sentence of “fraud,” express language regarding discovery ORS which contains noted, “fraud, “misleading representations.” “deceit” and As we have deceit or misleading representation” language applies only repose in to the statute of set forth 12.110(4) all, apply, the second sentence of ORS and does not if at until five Moreover, surgery supra legal inquiries after the or treatment. See note 5. under 12.110(4) of ORS are different. the first sentence of ORS two sentences Under 12.110(4) (limitations), plaintiff begin running the statute does not until “injury.” discovers or in the exercise of reasonable care should have discovered “discovery delay running plaintiff operates rule” of the statute if the reasonably “injury” reason. Under the sentence of fails discover second plaintiff (repose), or in the statute to run when the discovers fraud, misleading the exercise of reasonable care should have discovered the deceit or delay “discovery operates representation. in rule” the second sentence fraud, deceit, delay misleading if the reason for the statute genuine fact exists in this case as A issue of material plaintiff care in exercise of reasonable should to when have discovered a substantial

possibility tortious cond clearly symptoms unrelated to were not so Plaintiffs uct.10 performed procedure matter of law a reasonable that as a the person conduct. In that the cause was tortious would believe plaintiff that the numbness and addition, Parsons assured experienced plaintiff left arm was his loss of use that temporary. genuine of fact as to raises a issue The assurance person. upon assur The fact that the a reasonable its effect put surgery, than did not before, rather ance came after conduct. Nor a matter of law of tortious on notice as unjustified say was, law, a matter of can we as relying As this court stated Parsons’s assurances. “[w]e Corporation, at v. Hobart Schiele * * * anyone say who is matter of law that as a cannot taking optimistic the better is a turn for his condition’s about ”11 unreasonable. negligent argue plaintiffs that further Defendants plaintiff surgery s of law because claim barred as matter by of limita- the statute claim was barred informed consent plaintiffs Appeals informed held that The Court of tions. limitations the statute of was barred consent claim “[tjhat plaintiff that when discovered claim accrued because that at that time He knew the function of his arm. he had lost he had not Parsons, Gaston v. that risk.” been warned of App claims stem from both at 558. Because 117 Or alleged negligent to the sur- in relation conduct defendants’ only plaintiff gery, as a result one harm suffered because single argue are a claims thereof, defendants representations utility case, only physician’s speak of the of the In this we statement. in the limitations “injury” purposes of the statute of for the analyzing in 12.110(4). first sentence ORS plaintiff had actual whether as to question of fact also exists material A Viewing bringing action. this legal injury before more than say matter of that as a plaintiff, we cannot light most favorable the record knowledge. such law he had Dist., Valley Irrigation 304 Or Duyck argue v. Tualatin Defendants disagree. case That (1987), case. We result this a different dictates 742 P2d 1176 statute, ORS a different decided under misrepresentation case negligent was a rely for their Duyck upon defendants Moreover, language in 30.275. argument is dicta. claim that accrued when plaintiff became aware of the numbness and the loss of use of his left arm. We disagree. when a analyzing claim accrues for statute of purposes, issue is when the knew should have known facts that would make a reasonable person aware a substantial possibility he or she had suffered as the result of damage 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 of certain surgery that, risks and regardless what degree care was exercised by defendant, because, was harmed with more complete informa- tion, he or she would not have consented to the See Arena v. Gingrich, (discuss- (1988) 1, 4, 305 Or 748 P2d 547 claims). ing causation element of informed consent In con- trast, a negligent claim surgery is based on a defendant’s failure to exercise the appropriate degree care performance of the surgery, regardless risks of which the plaintiff has been warned. See Fazzolari v. Portland School 1J, Dist. No. 1, 14-15, 734 P2d 1326 elements of (discussing claim negligence based upon “special relationship”). Although cases, some one, and this is two claims may linked, closely different facts materially start the running the statute of limitations for each claim.

Not can the distinct, claims be but factually they legally are also distinct. Each claim arises from the violation aby defendant of different legal interests of a plaintiff. Informed consent concerns a plaintiffs to control what right is done to his or her body,12 while negligent surgery reflects 12 aptly by This interest was stated Justice Cardozo for the New York Court of Appeals: “Every being right human of adult and sound mind has a determine body; surgeon performs operation

what shall be done with his own and a who an assault, patient’s without his consent commits an for which he is liable damages.” 125, 129, 105 NE 92 (1914), Hospital, York 211 NY overruled on Schloendorff v. New other (1957). grounds, 3, Bing Thunig, v. 2 NY2d 163 NYS2d 143 NE2d 3 negligent surgery origins. Informed consent claims have different Claims for originally theory recently battery, lack of informed consent were based on a of but more Mansfield, negligence have been considered a form of 260 claims. Getchell v. Or (1971). 177-78, Gans, Speiser, P2d See also 4 Krause & The American Law of (1987) consent). §§ (discussing Torts 15:70-15:77 doctrine of informed resulting harm to be free from physical plaintiffs right Indeed, the two of negligence performance by care that are defined standards of have different torts of care for duty different statutes. See ORS 677.095 (general consent). (informed Awareness of ORS 677.097 physicians); rule, and the element conduct one tortious for the statute theory a identify particular need not However, two different when to run. begin of of a viola- stake, at awareness interests are legally protected a notice as a on does not put of one interest tion legally of other distinct violation of the possible matter of law analyzed separately claim must be interests. Each protected facts have known knew or should if a plaintiff to determine substantial aware of a reasonable person would make a that had been interest the legally protected possibility invaded. limitations, of the statute

For the purpose surgery as a negligent claim is not the same consent informed a com negligence one specification claim. Just because limitations, it does the statute by is barred plaint having of negligence that a specification follow necessarily Wimmer, barred. See Little basis is legal different factual neg three (although 580, 585, 739 P2d 564 Or collision, automobile out of single claims arose ligence intersec construction of design based on negligent claims mainte on negligent claim based time-barred, but tion were not). medical case, negligence In this nance was his consequence of law as a as a matter claim is not barred time-barred. being consent claim informed question in this case it is hold, therefore, We unreasonably whether plaintiff decide jury fact for the surgery the negligent with action regard this delayed filing all the whether, considering decide claim. The must jury in the exercise aware or circumstances, plaintiff relevant a substantial have been aware care should of reasonable of tortious the result harmed as he had been possibility saying the effect would have holding other Any conduct. within two years file suit must law a a matter of that as regardless following surgery, difficulties experiencing normally Patients by physician. made of assurances physician. their made assurances rely able to should be Any other would rule be unfair and The unrealistic. rule is a doctrine of fairness: manifestly

“It negligently unrealistic and unfair to bar a injured party’s cause of action before he had an oppor- has * * * tunity to that it discover exists. We do not believe that danger spurious great is so claims as to necessitate the injustice persons having infliction of legitimate claims which by ordinary were undiscoverable exercise care prior lapse from the time of act Greene, injury.” inflicting Frohs 253 Or at supra, v. 4. aWhen has major he or she is at a surgery, tremendous informational disadvantage impedes to discover a opportunity claim:

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

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

Our this case does not expose threat of We note that in absence unending litigation. misleading representation, deceit, or fraud, negligence provides repose medical cases of a statute of Nothing holding five from the date of treatment. our five-year period. extends that genuine of material fact

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

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

PETERSON, J. majority Although part agree I with the latter consent), agree opinion (concerning implied I do not with 12.110(4). part, I therefore dissent. first which concerns ORS 12.110(4) malpractice that, in medical ORS states begins “the when cases, to run date the statute injury of reasonable is first discovered or exercise added.) (Emphasis care should have been discovered.” negligence majority actions, that, holds in medical to run “the of limitations when statute care should have or in exercise of reasonable knows person aware of known facts which would make a reasonable * * * * * * tortious conduct possibility substantial Or at 256. exists.” 318 — 12.110(4) injuiy “when I believe that words ORS — added) knowledge (emphasis of a mean

is first discovered” resulting relationship harm between the event and causal fault. event, of the defendant’s from the 12.110(1) (4) are relevant statutes. ORS They provide: “(1) assault, battery, imprisonment, false An action for another, not rights or injury any or for in this contract, and not enumerated

arising especially provided, years; within two chapter, shall be commenced deceit, the upon fraud or action at law based in an limitation shall be deemed to commence from the dis- covery of the fraud deceit.

“(4) injuries An damages action to recover to the medical, treat- person arising surgical from dental ment, operation omission or be commenced within two shall years injury from the date when the is first discovered or in the exercise of However, should been reasonable care have discovered. 12.160,

notwithstanding provisions of ORS every years such action shall be five commenced within from treatment, the date omission or operation upon or, the action is based if there has been no action commenced fraud, five years within because or misleading deceit representation, then within two the date such fraud, misleading deceit or representation is discovered or in ’’ the exercise of reasonable care should have been discovered. (4) virtually contain identical (1) “injury person.” clauses. Subsection refers to the “injuries person.” refers to Subsection Subsection (4) also states that the “shall action within commenced from the date when the discovered or first in the exercise reasonable care should have been discov- added.) (Emphasis ered.” considering

In the and 12.110, text of context ORS it legislature, is fair to assume that the in 1967, 1969, 1971, and (4)phrase “injuries person” intended the subsection to the to meaning phrase “injury person” have the same as the to the (1). considering contained subsection context, In the the “[cjontext majority interpreting interprets states that includes case law “ ‘[w]hen those statutes” because, this court a interpretation part statute, becomes of the statute as if ” written into it at the time of its at enactment.’ 318 Or 252 (citing Sullens, v. 436, 443, State 314 839 Or P2d 708 (quoting Walther SAIF, 149, v. 312 Or P2d 147, 817 292 (1991))). precedents I therefore the examine this court of before 1967 to court, 1967, determine whether this before phrase interpreted “injury person.” had the 12.110(1) apart Oregon Current ORS has been § Oregon, p Code since 1862. (Deady 1845-1864), 3, General Laws of ch 1, 140 substantially read the same as current requiring specified 12.010, ORS that actions be filed within a time “after the cause of shall action have Another accrued.” six-year prescribed “[a]n section limitation for action for 264 to the conversation, or or for other

criminal another, contract, of not hereinafter rights arising to added), similar (emphasis language very enumerated” 12.110(1). 6, 1, p § ch current Oregon, ORS General Laws of 1845-1864). limitation section 6 (Deady six-year 141 of See General Laws two-year period. was amended in 1870 1843-1872). 8, Lane 1, p (Deady § ch 107 & Oregon, current ORS 1965, statutes Before the predecessor when times to determine were construed several ’ ‘ occurred, the running thus the statute ‘injury’ starting 12.110(1). Those consis- in ORS cases contained 12.110(1), held the as in ORS used tently “injury,” act when the occurred. wrongful occurred Seachrest, P Hood v. 457, 174 (1918), Or Gresham, v. First State Bk. 33,Or 179 P 671 Schwedler In both (1919), from the sale land. arising were fraud cases cases, the held occurred at the time “injury” court that the fraud, responding not the fraud. decisions, Assembly Legislative those amended at an action statute words by adding “provided, the limitation shall be deemed deceit, law based fraud upon from the fraud or deceit.” only to commence remains in current 122, § That Laws ch 8. language Or 12.110(1). ORS amendment to what is now

Respecting v. 542, 547-48, 390 Vaughn Langmack, (1964), P2d 142 stated: make unavoidable conclusion

“Logic and common sense evidently decision legislature, prompted that when the Seachrest, in Hood 1919 so as amended statute time based bringing that the limited action provide deceit commence to run upon fraud or should deceit, that, it to all the fraud intended as discovery of actions, that the commences to run provision other time remain from accrual of the cause of action should unchanged.” Haworth, 213 P2d 797 Wilder decide, under a

(1950), the court was required predecessor statute to current ORS 12.110(1),1 whether stem- injuries from ming radiation treatment performed in 1937 occurred on the date of the treatment or the date that plaintiff discov- ered that she had been harmed by the treatment, the date of in 1946. being The court held that the date of the injury meant two years from the date of treatment: subjected plaintiff “Defendant X-ray therapy day on one * * * **

—only January 11, 1937 *. The statute limita- tions commenced to run day, on that and the period of limitation expired January 12, 1939.” 187 Or at 695.

Vaughn v. Langmack, supra, also considered when the statute of 12.110(1). limitations begins to run under ORS The claim was that a surgeon left negligently a surgical needle in plaintiffs abdomen during hernia surgery. The surgery on July 1958. The needle was discovered over four years later, in October 1962. The plaintiff contended that “his cause of action did not accrue until he knew or should have known of the injury.” Or at 544. Vaughn opinion contains a thorough discussion

of the law case and legislative antecedents of some of which is summarized above. The court held that statute of limitations run began to day the surgery, when the needle was left in the abdomen: told, however,

“We are damage gist is the of the action of malpractice and that it cannot determined from the allegations of the complaint when damage was suffered by plaintiff as the result of the defendant’s negligence surgical closing the wound without first removing the ‘lodged needle complaint says] [as the in plaintiffs theory abdomen.’ This of ing appears to be introduced as a means seeming judicial to avoid the legislation, fault of concern- later; us, will though, more be said itas seems to it way saying another that the cause of action does not injury. accrue until it For we doubt that' if would be contended that became aware of the day wrongful of the needle in his after the presence act he body against not then have had a cause of action would skill, to that though up defendant for his want of care or even no or discomfort from pain time the had experienced 12.110(1). was, substance, § to current ORS 1-206 identical OCLA 266 he, least,

that It seem at cause. would that would have had immediately the right to sue to recover for the of an cost operation for removal of the and the and pain needle suffer- Id. at ing incident to such an operation.” 552-53. Branner, v. 307, 312-13,

Berry Or 421 P2d 316, 245 v. Vaughn Langmack (1966), overruled expressly Haworth, overruled Wilder v. and held that an impliedly action who left a damages against surgeon negligently needle in the abdomen accrued at the time of the did say “injury” of harm. But court not that Berry simply then occurred. held that the statute did not had begin to run until the actual or constructive the injury.2 of knowledge been

Even some of those have precedents though their their dis- holdings discovery, overruled concerning cussion of when occurs remains relevant. “injury” “Injury,” the 12.110, ORS occurs when negligent within the of meaning viz., incision, the left in the the occurs, act when needle is into when nerve is tainted blood introduced the the patient, 1966, Before of knowledge injury damaged run. irrelevant when statute of limitations to the the statute, and case law amendment Presently, by run, though does even begin statute of limitations the occurred, until has actual construc- has tive knowledge injury. mean- at history,

Without looking legislative 12.110(4) remains the is clear. The word “injury” ORS ing — the first harm. The additional words of same occurrence of — within two from “shall be commenced sentence is first discovered or exercise date when the injury — essentially have discovered” care should been reasonable actual or constructive mean two is fault or tortious conduct a defendant’s Knowledge harm. not required. however, ORS concludes, majority 253, therefore looks and ambiguous, 318 Or at used as concluding “injury,” history, legislative Assembly below, Legislative 12.110 in 1967 amended ORS As discussed leaving brought against doctors for within which actions must

limit the time surgical objects patient. foreign ain requires knowledge of “tortious conduct.” Or at 255. The majority’s reading legislative history flatly wrong. ORS 12.110 amending 1965, legislature did not change meaning word “injury.” The legislature made an simply exception — — it had as earlier in 1919 for fraud for cases in which the patient does not discover the injury until sometime after injury occurs.

In 1966, Branner, v. above, Berry as stated supra, Vaughn Langmack, overruled held statute limitations on a patient’s cladm against a surgeon leaving for a needle in her abdomen during surgery did not to run until begin the knew or should have of known needle the left in her abdomen the earlier during That rule came to known be as the “discovery rule.”

The medical profession and the medical insurance industry were concerned that of the adoption rule discovery created open-ended with liability, applicable no of statute Therefore, 1967, limitations. in Oregon the Medical Associa- tion sought legislation would, in foreign cases involving objects: limit period time, the after discovery injury to the within person, which an action must be brought; (2) limit the total of time period following a “treatment or within which an action be operation” must The brought. result of the legislation was to create two-year period limitation after discovery object the and a total foreign seven limitation of after the treatment or period years The 1967 amendment limited to to operation. “injuries medical, person dental, surgi- the where in the course of any any foreign cal or other treatment professional or operation, * * * substance is introduced and is negligently permitted within remain the 406, Or ch body.” 1967, § Laws (emphasis added). amendment, read:

After the 1967 damages injuries “An action to recover dental, medical, or any surgical other where the course of foreign substance or operation, treatment professional bone, negli- and is flesh, or is introduced other than blood body living of a human within the to remain gently permitted within two harm, shall be commenced causing person, inor the the discovered first from the date when discovered; care have been exercise of reasonable should provided that action shall commenced within seven such be operation upon from the date the treatment or the action is based.” the

The intent of the 1967 amendment was legislative run from of the knowledge of limitation period — scissors, substance” “foreign sponge, presence —like tortious conduct.3 needle, medical again, us to 1969. Once brings That limit was back with to further legislation profession proposed The shows legislative history rule. scope discovery (1969), Greene, 1, 253 Or P2d 564 that, Frohs rule include discovery negli- Court extended Supreme and treatment. Frohs stated opinion gent diagnosis as follows: issue object foreign rule cases adopted court “This (1966). Branner,

in question extended to cases of 245 Or 421 P2d 996 Berry v. holding is whether the of that case should negligent diagnosis treatment.” 253 Or at 3. held:

The court Haworth, case of Wilder v. “This court in the in a (1950), refused to rule apply P2d 797 ** * and treatment. negligent diagnosis case of impossible justify theoretical basis “On a it discovery malpractice to one kind of applicability of the rule reason the objects] and not to another. The for [foreign in each discovery of the is the same former instance. application rule * * * in v. Wilder We therefore overrule our decision Haworth, any Id. at 3-4.4 supra, and similar decisions.” about 1969, medical was concerned the profession and treatment diagnosis discovery applicability the rule’s in the 1967 sought change it earlier for reason very — of time the absence objects cases involving foreign 12.110(4) discovery codify majority was intended to “ORS states that Berry at 254. That is incorrect. in v. Branner.” Or rule announced this court codify Berry v. Branner was to Although 1967 amendment one effect (insofar concerned), object foreign the manifest holding as filing claims. place for such legislative limits on the time allowed was to intention footnote, Frohs v. to ORS 12.110. noted 1967 amendment In a court Greene, supra, at 4 n 2. limit on “discovered” medical malpractice claims based on negligent or diagnosis treatment. It therefore sought legisla- tion similar to the legislation two passed years earlier, legisla- tion that would apply the same time limits to claims based on or diagnosis treatment. The legislative history House Committee on the 23, Judiciary, April 1969, contains this entry Bill concerning House 1797: Misko, “John attorney and lobbyist, testified on above

bill, pointing particularly ato recent Supreme Court decision which he felt would lawyers affect as well physicians. as He stated that since the opinion says a suit does not need to commence until the plaintiff knows he has a cause of action lawyers both and doctors are caught with a statute of limitations which Minutes, will never run." House Commit- 1969) added). tee on Judiciary 23, 1 (April (emphasis

After the measure passed the House of Representa- tives, there was a in hearing the Senate Judiciary Committee 12, on May 1969:

“Mr. John Misko explained that House Bill 1797 was introduced as the result a Supreme decision, Court Frohs Greene, [supra], which it was held that the discovery rule in medical malpractice cases extended to negli- cases of gent diagnosis or treatment. In that case the filed 10, her complaint May 1967, alleging that in 1951 the defendants negligently gave injections her when penicillin they knew or should have known that she allergic to that Minutes, drug.” Judiciary 12, Senate Committee 2 (May 1969). As enacted in was amended to read: “An damages injuries action to recover arising any medical, from surgical treatment, or dental omis- sion operation shall be commenced within two years from the date when is first discovered or the exercise discovered; reasonable care should have been provided that such action shall be commenced within seven treatment, the date operation upon omission 642, § the action is based.” Or Laws ch 1.

That confirms that legislative history the purpose the 1969 amendment was to limit for medical recoverability tort claims under rule malpractice “discovery” limit ways: by imposing two-year following seven-year person, by imposing hint, on all claims. There is no no discovery outer limit of intent any legislative record suggestion, to run an injured statute of limitations not until begin term) (I use the conduct.” majority’s discovers “tortious The medical remained concerned about profession 1971, rule. It returned discovery seeking further on the rule. it discovery Initially, sought legisla- restrictions tion outer limit on claims reducing seven-year lobbyist, had a new Tom five medical years. profession who testified: Cooney, gave of the of Cooney history

“Mr. statute malpractice cases and advised the committee that medical reduce of medical purpose bill is to the cost by making the doctors liable for a malpractice insurance very lengthy passed, If a has it period period shorter time. is difficult to the case. Defense becoming increasingly defend filed, very expensive if a lawsuit malpractice cases is held to be liable.” ultimately whether or not Minutes, doctor is II, Judiciary, on House Committee Subcommittee 1971). 15, p 1 (April entry: The minutes also contain this Policy Commit- Roy Payne, “Dr. chairman Public Association, OMAdoes tee, Medical advised Oregon type legislation this combat exclusively depend insurance, have an they as rising malpractice costs of procedure review program for doctors and a educational experts and settlement is claims are examined whereby However, they are if the claim seems meritorious. attempted faced threatening becoming fact a rather with the that this reserves that situation, passed, If the bill were expense-wise. years, cut to 5 for 7 could be now be maintained must with a graph copies He resulting savings in cost. distributed showing malpractice premiums cost insurance Ibid. physicians.” groups various side, con- On the House The bill the Senate. passed misrepresentation cases involving cern was about expressed 1971, had been 14, amendments By May aby physician. from claims limit on the outer offered to reduce misrepresentation. in the absence of to five years, seven years May Judiciary, Committee on of the House minutes entry: contain this “Dr. Seacat advised the committee that the bill would reduce the statute limitations medical malpractice years. 7 bill Oregon to 5 The is supported Medical year Association. The 7 in present statute results unneces- sarily hospital stays, extended x-rays excessive use of Many other increased medical costs. cases now filed in the sixth or year seventh would be simply up moved and filed years within 5 if the time limitation is reduced. The doctors malpractice now have a new program exercising and will be a good deal disciplinary against more action members who malpractice have claims them. against The language relating in to fraud 1 paragraph of the bill could be restated in section

4(b) objections meet physician that the could a conceal possible malpractice claim until the statute has run.” Min- utes, 1971). House Judiciary (May 14, Committee on 1 12.110(4) The measure ORS passed. then read: “An action damages to recover for injuries to the person medical, from operation arising surgical treatment, or dental omis- sion or years shall be commenced within two from the date when injury is or first discovered in the exercise of reasonable care should discovered; have been provided that such action shall commenced five years within from treatment, the date of the or operation omission upon or, the action is if based there has been no action commenced years fraud, within five representation, because misleading of deceit or years

then within two from date such fraud, deceit or misleading is or in representation discovered ’’ the exercise ofreasonable care should have been discovered. 473, § Or Laws ch l.5 5 history legislative legislature makes clear that the aimed to create five-

year “fraud, discovery involving misleading outer limit on claims deceit representation” seven-year “fraud, involving and a outer limit on claims misleading representation.” history legislative deceit or court so This described (1979). 723, 728-29, Augter, in Duncan v. 286 P2d Or 555 statute, amendment, fact, wording may, literal after in have 10-year created a outer limit some claims. The last clause of the second 12.110(4) sentence ORS states: “or, fraud, years if there has been no action within five commenced because misleading representation, years within date such deceit or fraud, then two from the misleading representation or in deceit or is discovered the exercise reasonable care should have been discovered.” clause, year day eight, Under if until one not discovered case, bring might ORS That within which to action. 12.115. have however, not before the court. deceit, fraud, that, say involving legislature What the aimed to cases representation, injured up total misleading had to a of seven legislative Concerning 1967, 1969, and history, majority concludes: 12.110(4)

“In and the light of text and context of ORS legisla- legislative history provision, of that we hold that the 12.110(4), ‘injury,’ as ture intended the word ORS used cognizable mean harm. the tort context of ORS legally 12.110(4), cognizable harm is if it is the result of legally Therefore, as ‘injury’ conduct. used ORS tortious (1) (2) causation; harm; consists of three elements: (footnote omitted). tortious conduct.” 318 Or at 255 history thing legislative If there is that is clear from the one majority’s conclusion, it is that the as to the every meaning injury, legislative step At was not the intent. legislative process, in each three ofthe consecutive sessions changed, goal in which this statute was considered and legislature was limits limit recov- to enact time injured erability, recoverability to allow an not to extend acquire knowledge person tortious conduct before time to of begins breath, to There a the statute of limitations wisp, run. is not glimmer legislative adopt vapor, to or of intent hint, legisla- majority purports derive the the rule that the to from legislative entirely contrary. history. The intent to the tive majority and our case The misreads both the statute Berry Branner, I the case in which a law. return to surgeon performed hysterectomy surgical a and left a needle preceded plaintiffs abdomen. Pain and discomfort the discovery plaintiff within The filed her action the needle. years the but than two the needle more two years surgery. the accrued after the The court held that claim plaintiff knowledge of the tort the that the “obtained at time file, years operation to than the five that date of treatment or rather the the fraud, if, deceit, legislature because of apply. What the said was that otherwise would injured person years, was filed within five the misleading representation, no action or Literally, the statute of file. that could extend from the to has by legislature. years, a result not intended limitations ten “fraud, deceit, representation” misleading paradox clause that The years, only five a result appears if no action is filed the first to kick in import Notwithstanding last legislature likely literal clause did not intend. history, me, 12.110(4), legislative the last clause on the it seems to based of ORS just “fraud, misleading representation,” for at all claims deceit is aimed Thus, years. if the is discovered five fraud which no action is filed for such claims in January three, year five to January 2 file. year patient would have until seven-year was intended. But legislative history outer limit makes it clear that us, case is not before either. by upon person at 316. defendant.” 245 Or her committed The issue Berry. I was not even raised before us in this case simply Berry when the that the claim accrued hold read plaintiff — injury obtained — during surgery and the cause her needle left in abdomen — Legislative Assem- stated, the 1967 As thereof predecessor bly to limit of current ORS enacted the § holding. Berry ch 1. Or Laws County, 669, 607 P2d Lake 288 Or Dowers Farms v. county (1980), by against a farmer involved a claim destroy- plaintiffs negligently spraying ing land, herbicide on the year crops. the two The issue was “whether period from the date limitations, ORS runs precipitating plaintiffs or from the date the incident injury.” at 671 288 Or discovers the when the omitted). (footnote 30.275(3), the The court held that ORS filing required limitations, which statute of tort claims or occur- the date of such accident “within two after “plaintiff discovered that the date that the rence,” runs from young plants potato deformed.” Id. at 681. were run that the statute of court did not hold that the knew or should have known when the plants potato the defendant’s tor- resulted from deformed tious conduct. Corporation, 483, 587 P2d v. Hobart

Schiele (1978), occupational claim a meat disease involved choking, coughing, wrapper dizziness, nausea, who suffered sought doctor, who treatment from and loss of breath. She likely problems were due to fumes that her told her wrap wrapping polyvinyl meat. There film used to chloride seeing plaintiff, doctor, before that was evidence believed that the machine brought might be the cause. She against The issue the machine. the manufacturer of action began when the to run limitations whether the statute of was by physician link the causal informed her symptoms wrapping or when and her machine between the symptoms their cause.” of her “first became aware she The court held: 284 Or at 487. begin did not limitations the statute of argues

“Plaintiff that its and identified her disease diagnosed run until her physician information of such acquisition that the agree We source. a physician would undoubtedly start period running. However, reject we plaintiffs contention nothing short of a positive diagnosis by physician will have this A effect. plaintiff whose condition yet has not been diagnosed by a

physician or, can have care, exercise of reasonable could have access to information which requires or would require a reasonable person to conclude she being seriously or permanently injured. hand,

“On the other reject we defendants’ claim that knowledge of symptoms and their causal relationship to defendants’ actions and of itself initiates the running of the statute. We do not believe the legislature intended that the statute be applied a manner which would require one to file an action for temporary sickness or discomfort or risk right loss of a of action for permanent injury. “The statute of begins to run when a reason- ably prudent person associates his symptoms with a serious permanent condition and at the same time perceives the role which the defendant played has in inducing that condi- course, tion. Of one’s condition may deteriorate to the point delay where a in seeking medical longer attention is no reasonable and to further delay such charge would be to individual with knowledge which a medical examination would otherwise have disclosed.” Id. at 489-90.

Schiele does not stand for the proposition that the statute of limitations does not begin to run until the plaintiff knows or should know that the defendant’s conduct was It tortious. stands the proposition that the statute to run when the plaintiff is aware of the causal relationship between the defendant’s conduct and the harm sustained. v. Tualatin

Duyck Dist., Valley Irrigation 151, 742 P2d (1987), was a claim for negligent misrepre- sentation involving property damage. plaintiff was farmer who asserted that the defendant him negligently told that he would receive water a certain by date. on that Relying representation, the plaintiff planted crops, crops eventu- ally were damaged because water was not available irrigation the date Dowers Farms v. Lake As did County, represented. the case turned on ORS required the action be within “after such brought the date of accident or occurrence.”

275 Duyck of limitations court held that the statute The to his began aware of due when the to run plain- representations, when the defendant’s reliance on representations regarding defendant’s “knew that the tiff ” ‘misrepresentations.’ availability Or at water were court stated: 162-63. The await awareness claim does not negligence “Accrual giving knowledge with of the facts Accrual occurs

negligence. added). (emphasis at 164 rise to the claim.” Id. either the were decided under All of the above cases * * * (“injury general of limitations tort statute 12.110(1), years”), ORS within two shall be commenced (“shall be commenced the tort claims statute of injury”), years alleged loss or ORS after the within two require- perceive difference between the I no real 30.275. us, and statute before ORS of those statutes ments 12.110(4). two after An action must be filed within knowledge harm, of the whether of harm and the cause plants, respira- abdomen, deformed harm be a needle tory by meat-wrapping film, unantici- difficulties caused by surgery. patient pated paralysis that the knows was caused knowledge injured person have does not two of tortious conduct.6 12.110(1) predecessors, construing and its ORS begins statute of limitations

this court has never held majority) only (quoting to run when of reasonable care knows or in the exercise “the make a reasonable facts which would should have known ** * tortious possibility aware of a substantial persons * ** exists.” 318 Or at 256. conduct 12.110(1), construing contrary, the court ORS On the begins consistently of limitations that the statute has held only knowledge causal and a elements, harm run with relationship conduct. the defendant’s the harm and between that, “injury,” used in Ore generally, as majority apparently concedes “harm, identity statutes, knowledge requires gon’s limitation other majority’s no basis for tortfeasor, There is 318 Or at 252. and causation.” 12.110(4) history legislative of ORS “text and the context that the conclusion conduct],” before Or at [requires of tortious provision of that begins to run. of limitations statute in the text or

Nothing context of ORS suggests ORS legislature, enacting intended the far-reaching change posited by majority, require knowledge before the statute of limitations fault contrary to run. The conclusion likely: seems more as used in ORS “Injury,” 12.110(4), means the same as 12.110(1). “injury” as used in ORS 30.275 The same should to an analysis to the apply person To read the limitation arising period (which relates to the only diligence plaintiff) — element of the defendant’s as distinct from the fault — defendant’s act makes ultimate the arbiter of liability timeliness. It also changes fundamentally Oregon statute of law, which heretofore has focused on knowledge (harm causation), and not on belief possible/probable facts based on those recoverability facts.

I would as follows. Under ORS apply 12.110(4), a inor the exercise of reason- person “discovers] * * * able care should “the injury” to his or her discover[]” knows, know, when the that he person person or should she has suffered harm caused unanticipated by surgery. Those are what the injury factors make on which the action is based discovered or discover- reasonably able in the first Those factors are also consistent with place. Corporation, Schiele Hobart the statement 284 Or at that does not 490, sickness discomfort” “temporary actuate the statute limitations. light

On we view the facts summary judgment, v. Bohl- most favorable to the nonmoving party. Stephens (1992). man, P2d Before 344, plaintiffs he a who had the use of was operation, partial quadriplegic an arm. Plaintiffs “arm was limb, everything one himself, teeth, his and to him.” He used his arm to feed brush joy the use of a stick. through an electric wheelchair control where he used his arm to answer job Plaintiff also held phone type. 26, January on was admitted to the hospital

Plaintiff Doctors recom- in his lower extremities. 1987, for spasms chemical rhizotomy pro- mended that undergo plaintiff This procedure, cedure to alleviate his discomfort. phenol, injection glycerin, amipaque involved spine, plaintiffs the nerves of the into would deaden solution spasms. surgery, spastic his and end Before muscles any possibility might plaintiff he warned of lose not performed period of Doctors the use of arm for time. his surgery on March on 1987. plaintiffs to his Within 10 to minutes of return surgery, plaintiff he could move room after the realized not immediately complained he could not his arm. Plaintiff plaintiffs his At that Dr. told one of time, move parents arm. Parsons have the of his arm back would use morning. plaintiffs did return next arm not Use morning. discharged hospital

Plaintiff was from the March appointment that time with Dr. 20, 1987, and at scheduled April discharge, use of Parsons for 1987. At the time of plaintiffs arm had returned. plaintiffs parents April 16,

On one of “several” pointed to Dr. Parsons that the use of times out plaintiff could that, this, arm had not returned and because of dependent totally not run his wheelchair and was family on plaintiff time, needs. At Dr. Parsons told his that [he] “it be six to two before would that would months again” “phenol [his] function in arm because of have injection.” did within that Use of arm not return period date. Plaintiff contacted has returned to lawyer August on 23, 1989, and commenced this suit on November 1990. dispute Plain- real the facts here.

There is no about surgery arising harm from the tiff was aware of substantial day surgery. Beyond doubt, knew, he soon by “injury” surgery, the sur- that was caused after the his gery. I concede One of the defendants told him so. negligence plaintiff was a that defendants’ was unaware plaintiff harm did his But know cause of harm. meaning surgery. of ORS Within the from the resulted injury to was “discovered.” his brought plaintiff so, could have to do he Had chosen shortly In more than technical after his action necessary claim, all of to assert sense, all of the events support recovery, Duyck facts that would had occurred. Valley Irrigation Dist., Tualatin states that the stat begins party owning ute oflimitations to run when the a claim right “has a to sue on it.” 304 Or at 161. majority part relies on Dr. Parsons’ assur- given plaintiff

ances to that the use of the arm would return in years. six months to two Reliance on such assurances to begins determine when the statute of limitations run to is irrelevant.7 already necessary sup-

First, stated, as all events to port already assertion of a claim Second, had occurred. majority’s analysis suggests result of the that the determina- begins tion of when a statute of limitations to run turns, not on whether a claim exists nor on whether harm occurred, has injury permanent. but on whether the If were defendants negligent alleged, injury permanency as occurred, has deciding not relevant when the statute of limitations begins plaintiff run, because was entitled to recover dam- ages injury temporary for the whether the permanent, great gave or small. The fact that defendants plaintiff determining assurances is irrelevant in when the (in begins fraud, statute of limitations to run the absence of misleading representation, alleged deceit, or which is not here). point if is made clearer one assumes that defen- plaintiff, day following surgery, dants had advised “such a side effect occurs now and on the

then; it was caused surgery permanent.” and it is The statute of limitations begin run, if would then even remained unaware “injury” of defendants’ the matter. The reason: The fault “injury.” occurred, and was aware of the proposition stand for the that one has Our cases “injury” and the statute of limitations knowledge, constructive, harm, run when one has actual or conceivably if claimed on such assurances would be relevant Reliance misleading representa delayed bringing relying on Parsons’ that he this case Dr. expressly of ORS disclaims reliance on the second sentence tions. Plaintiff years “if has been no action the statute of limitations to five there extends fraud, misleading representation, deceit or commenced within five because of fraud, misleading representation deceit or then within two from the date such should have been discovered.” or in the exercise of reasonable care is discovered constructive, of a not when one has actual or knowledge, harm legally cognizable defendant’s Plaintiffs was fault. (the that he knew of the between his day relationship arm) an loss of use of the and the action could surgery, defen- have been filed then. Plaintiffs lack of irrelevant when the stat- dants’ culpability determining ute to run. Schiele

I gives sup- concede some language But if th e Schiele considered, are port majority. facts Schiele there is no for the inconsistency. really propo- stands dis- in an occupational sition that statute of limitations ease claim does not run until the has begin injured person constructive, actual or knowledge, of the relationship — between the event the use machine, of the meat-wrapping — in Ms. Schiele’s case and the harm. Here had such The event was the The harm was the knowledge. surgery. lost use of his arm. Branner, v. Hobart Cor

Berry Schiele poration, supra, are consistent Indeed, with this result. all of are. our Berry statute of limitations precedents began run when Ms. became aware of the fact that her Berry prior the needle. discomfort was caused cause- by required ’ effect harm by caused event. The “event’ relationship was the Ms. even after she knew that Berry, discomfort, did presence probably of the needle caused her not know whether her were caused a doctor’s problems run or a nurse’s But the statute neglect neglect. began when she knew that the needle was present. to run on

Similarly, began statute of limitations claim, Corpora- not when she knew that Hobart Ms. Schiele’s that its meat- fault, tion somehow was at but when she knew Here, film was the cause of her discomfort. likely wrapping run, though even began the statute of limitations again, part fault on the may any Ms. Schiele have been unaware of connected with entity other Hobart Corporation meat-wrapping sale of the manufacture, distribution, film. packaging machine or undoubt- 12.110(4), the legislature enacting run until limitations not the statute of intended that

edly and that harmed knew that were they injured persons — — surgery equally caused the harm. It is event clear that the such as

legislature did not aim to create a statute of to run with of fault. began present case, In the the statute of limitations relationship run on claim when he knew of the injured meaning surgery arm. Within between the of and his “injury” he had discovered the to his damage, person. did know the exact extent of the He not may injury due he neglect not have known whether the hospital, defendants, the anesthe-

of one of siologist, hospital employee. He had nurse, or other Contrary majority, however, within which to act. during suspended the time that a the statute is investigates and to to determine the exact extent of possible defendants is the determine which of two or more legally responsible I would for his or her condition. court. affirm trial joins

Graber, J., in this dissent.

Case Details

Case Name: Gaston v. Parsons

Court Name: Oregon Supreme Court

Date Published: Jan 6, 1994

Citation: 864 P.2d 1319

Docket Number: CC A9011-07199; CA A71991; SC S40098

Court Abbreviation: Or.