*1 8, 1991; Argued July July 1, and submitted resubmitted In Banc affirmed September 9, 1992, petition denied reconsideration December for review (315 442) 23, 1993 February denied RAETHKE, I. Jody Appellant, OREGON HEALTH UNIVERSITY, SCIENCES

Respondent. CA A65364) (8906-03222; filed Jr., Portland, the cause and argued Gordon T. Carey, for appellant. the briefs *2 General, Salem, argued Attorney Assistant Bagg,

John T. Dave With him on the brief were for respondent. the cause Linder, Solic- General, and L. Virginia Attorney Frohnmayer, General, itor Salem.

BUTTLER, J. J.,

Rossman, dissenting.

BUTTLER, J. for defen- appeals summary judgment

Plaintiff dant, action for medical public body, malpractice. this The sole issue is whether notice of gave ORS under 30.275.1

In several weeks after birth, was a at defendant Health given patient Oregon A an University. Sciences doctor at University C) (D dilation and & to severe emergency curettage remedy uterine the next two and her bleeding. During years, plaintiff child, husband to conceive another but were attempted Plaintiff consulted Dr. Hanschka to unsuccessful. determine whether there were medical reasons for her any become Hanschka ordered a pregnant. February, which showed abnormal structures hysterosalpingogram, her uterus. He informed her that he did not know whether the abnormalities were and recommended further congenital diagnostic procedures. later, Dishman,

A few weeks consulted Dr. who additional tests and discovered that one *3 uterus, acting tubes was inside her as a plaintiffs Fallopian natural intrauterine device that of prevented implantation fertilized He the condition to and eggs. explained plaintiff advised her that it would have to be removed before she could he the become Dishman told that believed that pregnant. D have been caused the & C 1985. problem might that, Fallopian Plaintiff concern without both expressed tubes, her would decrease. becoming chances pregnant tube ova remaining carry Dishman that the would explained removed ovaries, from for the compensating both completely tube. 20,1987, which was after

Surgery July why” informed that “there was no reason was plaintiff another For the next year not be able to have child. should become unsuccessfully pregnant. to half, attempted and a 1 provides: ORS 30.275

“(2) period given following applicable of time shall be within the Notice of claim

“(a) injury. death, year alleged wrongful loss or within one after the For “(b) injury.” claims, days alleged the loss or within 180 For all other 198 1989, another January, hyster- Dishman “may after which he concluded that plaintiff

osalpingogram, 6, infertile.” so informed her on permanently February be He 8, 1989, June after she learned that she days 1989. On infertile, she with might be filed notice defendant; day, on the next she filed her Defen- complaint. moved that the Stat- dant for summary judgment, asserting run, ute of Limitations had because the claim had accrued in 1987, had learned that she had been early plaintiff negligence and that defendant’s the injured probably the Plaintiff error to of that motion. assigns granting cause. the We view record in most favorable light her the benefit of all inferences of plaintiff, giving reasonable must there moving fact. As the defendant show that party, are issues of material fact and that it is entitled genuine no Seeborg General Motors Corp., v. as matter of law. judgment (1978). 695, 699, 588 P2d 1100 Or A cause of action for accrues from personal injury been, discovered, not from is, date the or should injury v. Gulley the time the full extent of is ascertained. damages Hammaker, rev 292 Or 863 55 Or den App (1982). be when a is or should occurs Discovery (3) (1) (2) the cause of the injury, aware of Duyck Valley Irrigation Tualatin of the tortfeasor. identity (1987). Dist., 742 P2d 1176 discover her The is when did question that, June, 1987, she learned acknowledges She injury. in defen- performed by agents the surgexy had caused one of hospital dant’s inside her uterus. She displaced tubes to be Fallopian was the cause probable that condition advised probably the condition and that pregnant to become which was procedure, performed. aby surgical could be cured the surgery that she had been injured by Plaintiff knew then *4 she did not know facility, although at Dishman, She understood that injuxy. extent of the full the second condition and diagnosed who had 1985 performance considered defendant’s surgery, not that she did says pursue be She “malpractice.” only that she was time, thought at because she her claim that infertile” and that the second “temporarily surgical pro- cedure would cure that She that a argues separate condition. 1989, and distinct claim accrued when she learned that she was infertile. clear, however,

The cases are that one may not avoid the Statute of Limitations harm by as two characterizing different kinds of rather injuries than one injury that has caused more damage than was originally contemplated. There is no significant difference between this case and Gannon v. Rogue Valley Center, Medical 92 Or App (1988). P2d rev den 307 Or 145 case, the plaintiff had contracted meningitis as a result of the defendant’s failure properly perform myelogram. She took no action when she learned that the defendant’s had negligence caused because she meningitis, recovered from it and believed that her injuries were not serious to file enough a lawsuit. Later, she developed organic brain syndrome as a result of the We held meningitis. that her cause action had accrued when she learned that the defendant had caused her men ingitis, not when she developed organic brain syndrome; therefore, it was barred Statute of Limitations.

Similarly, Guiley Hammaker, v. Or App rev (1982), den 292 Or 863 a 14-day-old child suffered what appeared to be only minor abrasion from an accident, automobile but 7 years later learned that accident had been the cause of probably to his damage optic nerve. We held that the cause of plaintiffs action had accrued at the time of the accident, he because knew then that he had been injured and that the accident was attributable to the negligence of the defendant. The fact that he initially thought that his minor did not only mean that a new cause of action accrued when he later learned that he had suffered an unanticipated So, too, kind of harm. Rockey, Hoffman 658, 639 55 Or App (1982), P2d 1284 we that the plaintiff held knew that he was harmed when he an infection in his leg shortly he did surgery; a new cause of action when he learned that his leg would have to be amputated. “[P]laintiff s discovery was complete perceived he his difficulties knew that his doctor had failed to warn him of these particular problems— or not” 55 Or at permanent App 664. (Emphasis supplied.) *5 be cor- thought

That condition could plaintiff Ferris, Jaquith does In help until 1989 not her. rected (1984), P2d 1083 the had relied plaintiff signed money agree- when she an earnest realtor’s valuation December, 1977, in to sell to Jones property ment for the $164,325. May, 1978, she learned that was property In and to with the sale. Jones $400,000 proceed refused worth action specific in his for ultimately performance prevailed in denied review of our the Court decision his when Supreme realtor, The then sued the Ferris. The court favor. plaintiff held that cause of action Ferris accrued against the plaintiffs faulty learned of his valuation in 1978. May, when she first liability, money agreement “The was an established earnest legal costs notwithstanding potential contract The defenses. convey duty to resist her contractual to plaintiff assumed (Citations 297 Or at 788. omit- constituted harm.” likewise ted; emphasis supplied.) plaintiff the fact the did not Jaquith makes clear that and might extent of she had suffered damage know full harm does not been able to recover from the suffered The of of Limitations. plaintiff the Statute delay running for specific fees the action attorney defending had incurred performance. had suffered harm in

Because knew that she plaintiff and the of the tortfeasor at identity and knew the cause not under ORS time, her notice of claim was did not err in granting The trial court 30.275. for summary judgment.

motion

Affirmed.

ROSSMAN, J., dissenting. this court

A must be affirmed summary judgment and the is as to material fact any there no issue genuine if of as matter law. judgment is entitled to defendant rule, apply it. cites that it does Although majority discov- decides, law, Instead, it as a matter i.e., it I reverse would disputed ered her decides injury; fact. jury. be made aby that determination to and remand for (1) one of her Fallo- had been told: by pre- a “natural” contraceptive was as acting tubes pian (2) ova; fertilized her efforts venting implantation of the abnormal unsuccessful because conceive had been (3) tube; responsi- have been might of that defendant location (4) correct location; required surgery ble for the tube’s (5) she would have no becom- situation; difficulty and because her fertility surgery, ing pregnant corrective undergone after she Only unaffected. tests, was she as diagnosed perma- subsequent malpractice infertile. She notice nently gave 180 days. within *6 facts, belief plaintiffs

On those could find that jury did not contraceptive that she had a correctible condition which is “discovery” permanent infertility, constitute that, doctors, to her and her unbeknownst injury is, in 1985. could conclude that her jury sustained That do claim was filed. The cases relied majority fact, a different those cases result. involved require who were aware of a but took no action to plaintiffs problem, later, and, it. their condition remedy They accepted passively when their were found to be than had antici- injuries greater Here, barred from suing. actively were pated, they second tests and to determine what sought opinions, that, matter. court should not determine as a This law, in 1987. It was not matter discovered to conceive until 1989 that she learned that result of the D & C in 1985 that had rendered her infertile. Because a reasonable could reach jury a different conclusion than the and because this majority, a factual the hands of a presents question belongs case I jury, dissent. JJ., in this Durham, join De Muniz and

Riggs, dissent.