Duncan v. Augter, 76-218-L

• Decision Date: 29 April 1983
• Docket Number: No. 76-218-L,76-218-L
• Citation: 62 Or.App. 250,661 P.2d 83
• Parties: Jeanne A. DUNCAN, Appellant-Cross-Respondent, v. Eugene F. AUGTER, Respondent-Cross-Appellant. ; CA A21819.
• Court: Oregon Court of Appeals

Page 83

661 P.2d 83

62 Or.App. 250

Jeanne A. DUNCAN, Appellant-Cross-Respondent, v. Eugene F. AUGTER, Respondent-Cross-Appellant.

No. 76-218-L; CA A21819.

Court of Appeals of Oregon.

Argued and Submitted April 9, 1982.

Decided March 16, 1983.

Reconsideration Denied April 29, 1983.

William H. Ferguson, Medford, argued the cause for appellant-cross-respondent. With him on the briefs was Grant, Ferguson & Carter, Medford.

Hugh B. Collins, Medford, argued the cause and filed the briefs for respondent-cross-appellant.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Plaintiff commenced this medical malpractice action in 1976, seeking damages for injuries resulting from surgery performed by defendant in 1968. Defendant demurred, alleging that the claim was barred by the applicable statute of limitations, ORS 12.110(4). The trial court overruled the demurrer, and trial resulted in a verdict for plaintiff. The Supreme Court reversed, holding that the demurrer should have been sustained. Duncan v. Augter, 286 Or. 723, 596 P.2d 555 (1979). The mandate issued by the Supreme Court remanded for further proceedings and the trial court allowed plaintiff to file a second amended complaint. Defendant then moved for summary judgment on the grounds that ORS 12.110(4) barred the action. Plaintiff appeals from the order granting defendant's motion. We affirm. ¹

We take the facts from the record, the pleadings, the transcript of the original trial and the depositions of plaintiff, defendant, plaintiff's attorney and Dr. Watson, a physician who treated plaintiff following the 1968 surgery. Defendant operated on plaintiff to remove her gall bladder. He removed plaintiff's appendix as an incidental surgical procedure. Plaintiff continued to suffer pains in her abdomen and suspected that her discomfort resulted from the surgery. She was examined and treated by defendant for several weeks after the operation, but the symptoms continued.

By November, 1970, plaintiff had terminated her physician-patient relationship with defendant. In May, 1971, she consulted Dr. Watson about her chronic abdominal pain. He suspected a small bowel obstruction and with Dr. Rutter performed exploratory surgery. They relieved the obstruction and in the process found suture material of the kind used in the ligation of an appendix "stump" in a large abscess where the appendix had been. Both Dr. Watson and Dr. Rutter concluded that the abscess was the result of the 1968 surgery and hypothesized that it had resulted from "leakage from the [appendix] stump."

After discussing the abscess with the two surgeons, plaintiff retained an attorney (Ferguson) "to investigate whether [she] had a claim or not." In October, 1971, after an initial review of plaintiff's medical records, Ferguson wrote to defendant:

"Since the gall bladder-appendix operation by yourself and the follow-up care by Dr. Albert A. Griffin, Mrs. Duncan has had to have surgery, as an infection apparently had continued with her from the operation. I have discussed the matter at length with Dr. Watson and Dr. Rutter and feel that negligence is present in the operation and follow-up care of Mrs. Duncan."

Later, following additional discussions with Dr. Rutter and Dr. Watson and another review of the medical records, Ferguson concluded that "the stitching that came apart from that operation could occur in the absence of negligence" and advised that the contemplated suit not be brought.

Plaintiff's lower abdominal pain persisted. In August, 1975, during further exploratory surgery, Dr. Watson and Dr. Meyerding found a large number of adhesions, or scar tissue, surrounding plaintiff's abdominal organs, making it difficult to identify and remove the source of her trouble. After taking out the right ovary, they discovered a piece of tissue adhering to the pelvic wall that a pathologist identified as the distal end or tip of the appendix. These doctors testified that the abdominal problems plaintiff experienced from 1968 to 1975 resulted from an infection coming from this fragment of her appendix.

In the second amended complaint, plaintiff alleged that defendant was negligent in three respects: failure to remove plaintiff's entire appendix, failure to discover that he had not removed the entire appendix, and failure to use an incision that would have allowed him to properly see and remove the entire appendix. Plaintiff also alleged that defendant told her that he had removed her entire appendix and that her post-operative ills were not a result of a complication from surgery, that these representations were false and misleading, that plaintiff and her doctors relied on these misrepresentations in their subsequent treatment and diagnosis and that the misleading nature of the representations was not discovered until the 1975 surgery.

Defendant's motion for summary judgment was made on the ground that plaintiff's claim was barred by ORS 12.110(4), for the following reasons:

"1) Plaintiff discovered or should have discovered her injury or cause of action in 1971.

"2) In 1971 the plaintiff discovered or should have discovered the falsity of the representation that plaintiff's post-operative ills were not due in any manner to any difficulty or complication resulting from the 1968 surgery.

"3) Regarding the representation that defendant had removed plaintiff's entire appendix:

" * * *

"(c) There was no actual reliance upon any such representation by plaintiff or her physicians.

"(d) Any reliance upon the representation by plaintiff or her physicians was unreasonable.

"(e) The representation was not a cause in fact of plaintiff's delay in commencing this action."

Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. The record is viewed in the light most favorable to the party opposing the motion. Huitt v. Smith, 56 Or.App. 74, 77, 641 P.2d 70 (1982).

ORS 12.110(4) provides:

"An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered."

The threshold question here is when plaintiff discovered or should have discovered her injury within the meaning of ORS 12.110(4). ORS 12.110(4) codifies the discovery principle developed by case law, beginning with Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), where the court held that the cause of action "accrued [and the statute of limitation began to run] at the time plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant." 245 Or. at 315-16, 421 P.2d 996. In Hoffman v. Rockey, 55 Or.App. 658, 663, 639 P.2d 1284, rev. den. 292 Or. 722, 644 P.2d 1131 (1982) (involving medical malpractice and applying ORS 12.110(4)), we explained:

"A plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured, (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent. * * * "

Application of the rationale is an objective matter and contemplates that the facts known and those that would be disclosed through a diligent inquiry undertaken by a reasonable person in possession of those facts are to be considered together in determining when a plaintiff discovered a cause of action. See ORS 12.110(4); Frohs v. Greene, 253 Or. 1, 7, 452 P.2d 564 (1969) (medical malpractice); Melgard v. Hanna, 45 Or.App. 133, 607 P.2d 795 (1980) (legal malpractice).

To start the running of the statute of limitations, a plaintiff need not have knowledge of facts that, if proved, would convince every reasonable factfinder that 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. Therefore, a plaintiff has discovered a cause of action and ORS 12.110(4) begins to run when he knows, or should know through diligent inquiry, facts from which a reasonable factfinder could conclude that the plaintiff's injury was caused by an act of the defendant that was somehow negligent.

Here, no genuine issue of material fact exists as to whether plaintiff should have discovered a cause of action against defendant in 1971. There is no question that plaintiff knew she was injured. She experienced abdominal pain from immediately after her gall bladder surgery in 1968 until after her surgery in 1975. Further, plaintiff knew or should have known after her surgery in 1971 that her injury was caused by an act of defendant.

Dr. Watson and Dr. Rutter operated on plaintiff in 1971 to remove a bowel obstruction. During this surgery, they discovered an abscess where plaintiff's appendix had been. Both doctors believed that the abscess was a complication of the 1968 surgery performed by defendant, that the abscess was caused by a leakage from the appendix stump, that the abscess caused the bowel obstruction and that the obstruction and abscess caused plaintiff's lower abdominal pain. More specifically, Dr. Watson believed that the leakage and abscess were caused by defendant's use of an incision that did not allow him to view clearly and close off the appendix during surgery....