Banda By and Through Banda v. Danner

• Decision Date: 06 November 1987
• Docket Number: R,No. 1,1
• Citation: 741 P.2d 514,87 Or.App. 69
• Parties: Jose BANDA, Jr., By and Through Sylvia BANDA, his guardian ad litem, Appellant, v. William B. DANNER, M.D.; State of Oregon; and David Loper, Defendants, and Umatilla Hospital Districtespondent. A8401-00096; CA A40303.
• Court: Oregon Court of Appeals

Page 514

741 P.2d 514

87 Or.App. 69

Jose BANDA, Jr., By and Through Sylvia BANDA, his guardian ad litem, Appellant, v. William B. DANNER, M.D.; State of Oregon; and David Loper Defendants and Umatilla Hospital District No. 1, Respondent.

A8401-00096; CA A40303.

Court of Appeals of Oregon.

Argued and Submitted June 8, 1987.

Decided Aug. 26, 1987.

Reconsideration Denied Nov. 6, 1987.

Richard P. Noble, Portland, argued the cause for appellant. With him on the brief was Kathryn H. Clarke, Portland.

Lee S. Aronson, Portland, argued the cause for respondent. With him on the brief were James C. Carter and Holmes, DeFrancq & Schulte, Portland.

Before WARDEN, P.J., JOSEPH, C.J., and VAN HOOMISSEN, J.

WARDEN, Presiding Judge.

Plaintiff ¹ appeals from a summary judgment for defendant Umatilla Hospital District No. 1 (defendant) in this action for medical malpractice brought under the Oregon Tort Claims Act (OTCA). She asserts that defendant was negligent concerning the birth of her son Jose. ² Defendant is a public body under the OTCA. The trial court held that plaintiff had neither filed a notice of claim nor commenced this action within the statutory periods provided in ORS 30.275. We reverse and remand.

In the early morning of August 24, 1981, Sylvia, who was seven months pregnant, went into labor. She went to the Umatilla Hospital, which defendant operated, and asked the nurse on duty to call Danner, her physician. The nurse did not do so for two hours. When Danner arrived, he found labor too far advanced to stop. Jose was born soon afterwards. At Danner's request, Jose was transferred to Oregon Health Sciences University (OHSU) in Portland where he stayed until December. Partly because of a lack of oxygen immediately after his birth, Jose suffered serious and permanent brain damage.

In March, 1982, Sylvia consulted Ditton, an attorney in Hermiston, where she lived, about the possibility that defendant had been negligent. She emphasized the delay in calling Danner but also told Ditton that Dr. Benda, who had treated Jose at OHSU, had said that he had not received enough oxygen after his birth. Ditton wrote Benda for additional information. In her response, Benda was hesitant to comment on defendant's potential negligence, suggesting instead that Ditton consult a particular obstetrician who specialized in high-risk obstetrics. She did say that she saw no negligence by Danner. Because of Danner's good reputation in the community, and because of Benda's statement, Ditton then talked with Danner, instead of consulting a specialist. Danner said that he could not have stopped labor even if he had been called immediately after plaintiff arrived at the hospital. Ditton also prepared several questions, which he asked Danner or, possibly, Benda. ³ One question was whether the damage would have occurred if the hospital had had a respirator. It appears from Ditton's notes that the answer was "no."

After his investigation, Ditton told Sylvia that he did not think that Jose had a claim against anyone. Sylvia then dropped the matter. She later engaged the present attorneys, was appointed Jose's guardian ad litem, and filed this action against Danner and OHSU in January, 1984. Her attorneys thereafter received an opinion from a medical expert that defendant's negligence had contributed to Jose's injury. They investigated defendant's potential liability further and presented a tort claim notice to defendant on March 19, 1984. On April 18, they amended the complaint to add defendant as a party. Defendant thereafter moved for summary judgment on the ground that both the notice and the commencement of the action were not timely. The court granted the motion and entered the judgment from which plaintiff appeals.

Under ORS 30.275(2), Jose had 270 days after his alleged injury to give defendant notice of it: 180 days for the injury claim plus 90 additional days because of his minority. He had two years after the alleged injury to bring the action. ⁴ However, the periods within which notice must be given and within which the action must be commenced do not begin to run until a plaintiff has a reasonable opportunity to discover the fact of the injury and that the defendant was negligent in some respect which caused the plaintiff damage. Adams v. Oregon State Police, supra, n. 4; Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980). That is when the claim "accrues." Berry v. Branner, 245 Or. 307, 316, 421 P.2d 996 (1966). It is not necessary, under the discovery rule, that the plaintiff know the precise nature of the negligence or "have knowledge of facts that, if proved, would convince every reasonable factfinder that [the] plaintiff should win. It is sufficient that a plaintiff have knowledge, actual or implied, of facts that, if proved, will at least raise an issue of fact on each element of the claim." Duncan v. Augter, 62 Or.App. 250, 255, 661 P.2d 83, rev. den. 295 Or. 122, 666 P.2d 1344 (1983). That is, the plaintiff must know facts which, if proved, would be sufficient to survive a motion for a directed verdict.

The first question in this case is who is the "plaintiff" whose knowledge begins the running of the statutory period. Jose is the injured person; he clearly did not know the source of his injury or that defendant's negligence might be its cause at any time relevant to the motion for summary judgment. Defendant argues that we should impute Sylvia's knowledge to Jose and that Sylvia knew facts in the spring of 1982 which would survive a motion for directed verdict. Plaintiff insists that the claim is Jose's and that his mother's knowledge is not relevant. We have assumed in previous cases that a parent's knowledge is also the child's, but we have never so held; the plaintiffs did not raise the issue. See, e.g., Bergstad v. Thoren, supra n. 4, Guiley v. Hammaker, 55 Or.App. 921, 640 P.2d 664, rev. den. 292 Or. 863, 648 P.2d 850 (1982). Cases elsewhere appear to be divided. Compare Ohler v. Tacoma General Hospital, 92 Wash.2d 507, 598 P.2d 1358 (1979) (plaintiff did not know cause of her injury until she was an adult; her parents' knowledge before then is not imputed to her if they do not communicate it to her) with Nardone v. Reynolds, 333 So.2d 25 (Fla.1976) (limitations period began when...