582 P.2d 443 (Or.App. 1978), CA 8489, Comley v. Emanuel Lutheran Charity Bd.

Docket Nº:417-542; CA 8489.
Citation:582 P.2d 443, 35 Or.App. 465
Opinion Judge:TANZER, J.
Party Name:Christina Elena COMLEY, a minor, by and through her guardian ad litem, Laura A. Comley, Appellant, v. EMANUEL LUTHERAN CHARITY BOARD, d/b/a Emanuel Hospital, a corporation, Robert E. Thornfeldt, M.D., Malcolm F. Fuller, M.D., the Mira Corporation, a corporation, John Doe Two, Distributor, and John Doe Three, Retailer, Defendants, State Board of Hig
Attorney:Charles D. Maier, Portland, argued the cause for appellant. With him on the briefs were Leonard Popick and Galton & Popick, Portland. E. Richard Bodyfelt, Portland, argued the cause for respondents. With him on the brief were Paul R. Duden and Tooze, Kerr, Peterson, Marshall & Shenker, Portland.
Case Date:August 01, 1978
Court:Court of Appeals of Oregon
 
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Page 443

582 P.2d 443 (Or.App. 1978)

35 Or.App. 465

Christina Elena COMLEY, a minor, by and through her guardian

ad litem, Laura A. Comley, Appellant,

v.

EMANUEL LUTHERAN CHARITY BOARD, d/b/a Emanuel Hospital, a

corporation, Robert E. Thornfeldt, M.D., Malcolm F. Fuller,

M.D., the Mira Corporation, a corporation, John Doe Two,

Distributor, and John Doe Three, Retailer, Defendants,

State Board of Higher Education of the State of Oregon,

Supervising Agency of University of Oregon Health Sciences

Center, School of Medicine and Doernbecher Memorial Hospital

for Children, Michael J. Noonan, M.D., and Kit G. Johnson,

M.D., Respondents.

No. 417-542; CA 8489.

Court of Appeals of Oregon.

August 1, 1978

Page 444

Argued and Submitted Dec. 19, 1977.

Page 445

[35 Or.App. 466] Charles D. Maier, Portland, argued the cause for appellant. With him on the briefs were Leonard Popick and Galton & Popick, Portland.

E. Richard Bodyfelt, Portland, argued the cause for respondents. With him on the brief were Paul R. Duden and Tooze, Kerr, Peterson, Marshall & Shenker, Portland.

Before SCHWAB, C. J., and TANZER and BUTTLER, JJ.

[35 Or.App. 467] TANZER, Judge.

Plaintiff seeks to recover for personal injuries allegedly sustained as a result of medical malpractice. This is an appeal from an order granting summary judgment to two physicians and the State Board of Higher Education. 1

Plaintiff's cause of action, as stated in her fourth amended complaint, arose from the post-natal medical treatment administered following her premature birth in 1966. Immediately following her birth, plaintiff was administered oxygen therapy. This therapy was initiated at Emanuel Hospital, where she was born, and continued at Doernbecher Memorial Hospital for Children, where she was transferred when she was six days old. The latter institution is operated by the the State Board of Higher Education. Plaintiff further alleges that negligent prescription, administration and supervision of oxygen therapy caused her to

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sustain retrolental fibroplasia, 2 resulting in total and permanent blindness in both eyes.

The complaint further alleges that defendants knew, or in the exercise of reasonable care should have known, that plaintiff's blindness was caused by the negligent post-natal care which she received and that defendants fraudulently and deceitfully concealed this fact from plaintiff. As a consequence of defendants' false statements, plaintiff alleges that she did not discover the true cause of her blindness until 1975.

The Board and Drs. Noonan and Johnson together moved for summary judgment on the ground that plaintiff's claim against them is barred under the doctrines of sovereign immunity and immunity of state officers and employees. In support of their motion, they submitted affidavits indicating that, at [35 Or.App. 468] the time of plaintiff's treatment, the individual defendants were employed exclusively by the University of Oregon Medical School, Department of Higher Education, and that they treated plaintiff in the course of their state employment. In addition, Dr. Johnson stated in his affidavit that, while under his care, plaintiff did not receive nor did he administer or order that she be administered oxygen or oxygen incubation. Plaintiff did not file responsive affidavits. The motion was submitted to the court on the basis of defendants' affidavits and exhibits and, by stipulation, the hospital records.

Summary Judgment

The issue of immunity may properly be raised by demurrer, Smith v. Cooper, 256 Or. 485, 488, 475 P.2d 78, 45 A.L.R.3d 857 (1970), but that is not the only means of interposing an immunity defense. Wright v. Scappoose School Dist., 25 Or.App. 103, 106, 548 P.2d 535 (1976). The determination of whether immunity precludes a plaintiff's recovery is a question of law for the court. Weaver v. Lane County, 10 Or.App. 281, 299, 499 P.2d 1351 (1972). As such, unless it is waived, 3 the defense may be raised in any pleading or motion [35 Or.App. 469] appropriate for joining legal issues. See, e. g., Hulen v. City of Hermiston, 30 Or.App. 1141, 569 P.2d 665 (1977) (motion to strike treated as demurrer); Lanning v. State Hwy. Comm., 15 Or.App. 310, 515 P.2d 1355 (1973) (motion for directed verdict and nonsuit); Sullivan v. State, 15 Or.App. 149, 515 P.2d 193 (1973) (motion for directed verdict); Weaver v. Lane County, supra (motion for judgment N.O.V.). Summary judgment is appropriate where there are no material issues of fact and the moving party is entitled to judgment as a matter of law. ORS 18.105(3). If there are no disputed facts relevant to the issue of immunity,

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it may therefore be raised and resolved on a motion for summary judgment. See, Higgins v. Redding, 34 Or.App. 1029, 580 P.2d 580 (1978).

When, as in this case, a summary judgment motion is supported by affidavits, the adverse party may not rely upon the allegations of his pleadings to controvert matter contained in those affidavits and thus to preserve factual issues. ORS 18.105(4). 4 Absent counter-affidavits or conflicting evidence, facts set forth in [35 Or.App. 470] a supporting affidavit will be taken as true. See, Pelege v. Chrysler, 278 Or. 223, 227, 563 P.2d 701 (1977).

The foregoing principle applies to Dr. Johnson's defense. Plaintiff's cause of action is based on the administration of oxygen therapy and Dr. Johnson's affidavit states that he did not administer oxygen therapy to plaintiff or order that it be administered. Plaintiff's complaint contradicts Dr. Johnson's affidavit, but there is no counter-affidavit or evidence which does so. Therefore, Dr. Johnson's affidavit is taken as established fact and, because there is no material issue of fact as to his alleged negligence, summary judgment as to Dr. Johnson was proper.

Governmental immunity is the sole issue presented by the motions for summary judgment of Dr. Noonan and the Board. The supporting affidavits allege that at all pertinent times Dr. Noonan was in the employ of the State of Oregon. This fact is contradicted neither by the complaint nor by an opposing affidavit. Therefore, we accept as fact that Dr. Noonan's actions were as a state employee and determine as to each remaining defendant whether that fact constitutes a defense to the cause of action alleged in the complaint.

Applicability of the Tort Claims Act

Prior to enactment of the Tort Claims Act, ORS 30.260 to 30.300, in 1968, the State Board of Higher Education was wholly immune from liability for its torts under the doctrine of governmental immunity. Bacon v. Harris et al., 221 Or. 553, 557, 352 P.2d 472 (1960). Under the Act, the Board is liable for certain of its torts for claims arising after July 1, 1968. ORS 30.265(4) provides:

"ORS 30.260 to 30.300 do not apply to any claim against any public body or its officers, employes or agents acting within the scope of their employment arising before July 1, 1968. Any such claim may be presented and enforced to the same extent and subject to the same procedure and restrictions as if ORS 30.260 to 30.300 had not been adopted."

[35 Or.App. 471] Here, the injury and all the acts causing the injury constituting plaintiff's claim occurred in 1966, I. e., prior to the effective date of the exposure of the Board to liability for claims created by enactment of the Tort Claims Act. Therefore, the Board remains immune from liability for the 1966 claim.

This conclusion is not affected by plaintiff's allegation that defendants concealed the cause of her injury by fraudulent and deceitful statements. There is no assertion that plaintiff was damaged by the statements; indeed, under plaintiff's theory, were it not for concealment, plaintiff's claim in its entirety would indisputably have arisen prior to July 1, 1968 and would have been barred. The alleged false statements are not a part of the cause of action.

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If there was no liability initially, concealment of non-actionable facts cannot create liability where none existed. 5

Therefore, the Torts Claim Act does not apply and summary judgment was

properly allowed in favor of the Board. Common Law Liability

of a Public Employee; Immunity for Discretionary Acts

Under the common law, the immunity of...

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