Eldridge v. Eastmoreland General Hosp.

• Decision Date: 09 December 1987
• Citation: 88 Or.App. 547,746 P.2d 735
• Parties: Michelle ELDRIDGE, Personal Representative of the Estate of Renee Eldridge, deceased child, Appellant, v. EASTMORELAND GENERAL HOSPITAL, (Osteopathic), an Oregon corporation; and Robert Butler, Defendants, and Theodore Laszlo (Pediatrician), Respondent. A8402-01027; CA A41654.
• Court: Oregon Court of Appeals

Page 735

746 P.2d 735

88 Or.App. 547

Michelle ELDRIDGE, Personal Representative of the Estate of Renee Eldridge, deceased child, Appellant, v. EASTMORELAND GENERAL HOSPITAL, (Osteopathic), an Oregon corporation; and Robert Butler, Defendants and Theodore Laszlo (Pediatrician), Respondent.

A8402-01027; CA A41654.

Court of Appeals of Oregon.

Argued and Submitted July 17, 1987.

Decided Dec. 9, 1987.

Deborah L. Le Meitour, Portland, argued the cause and filed the briefs for appellant.

Emil Berg, Portland, argued the cause for respondent. With him on the brief was Hallmark, Griffith & Keating, P.C., Portland.

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

WARREN, Judge.

Plaintiff appeals the trial court's dismissal of this wrongful death action on Statute of Limitations grounds. We affirm.

Plaintiff is the personal representative of the estate of the deceased, Renee Eldridge. The fifth amended complaint alleges that on May 9, 1981, the day of decedent's birth, defendant Laszlo and another physician, acting as agents of Eastmoreland General Hospital, were negligent in the placement of an endotracheal tube in decedent's esophagus, which caused her death in September, 1981. Plaintiff then alleges:

"[P]laintiff reasonably believed Renee Eldridge's problems were caused by prenatal care and treatment and care and treatment during labor and delivery and further reasonably believed the University of Oregon Health Sciences Center records would only disclose the damage thus caused to the child.

" * * *

"That neither the Eastmoreland General Hospital records for Michelle Eldridge nor the Eastmoreland General Hospital records for Renee Eldridge contained information regarding the improper intubation and inadequate postnatal resuscitative efforts of Renee Eldridge.

" * * *

"That plaintiff did not discover and could not reasonably discover the negligence and improper intubation by defendants until April 3, 1984, when plaintiff obtained copies of the University of Oregon Health Sciences Center transport records that defendants had deliberately in their charting of this case in the Eastmoreland Hospital charts concealed the fact of the improper intubation."

A wrongful death action must be commenced within three years after the occurrence of the injury causing the death. ORS 30.020(1). The allegedly negligent treatment occurred on May 9, 1981, and plaintiff's decedent died on September 7, 1981. The complaint was originally filed against the hospital and doctors other than Laszlo on February 17, 1984. It was amended on February 28, 1986, to add him as an additional defendant. ¹ In Shaughnessy v. Spray, 55 Or.App. 42, 637 P.2d 182 (1981), rev. den. 292 Or. 589, 644 P.2d 1130 (1982), we held that, in a wrongful death action, the limitation period commences when the plaintiff discovers or should have discovered that the harm was caused by the defendant. Discovery occurs, and the time begins to run, when the plaintiff knows, or through diligent inquiry should know, facts from which a reasonable factfinder could conclude that the injury was caused by an act of the defendant that was negligent. Duncan v. Augter, 62 Or.App. 250, 661 P.2d 83, rev. den. 295 Or. 122, 666 P.2d 1344 (1983).

When a complaint shows on its face that the period for bringing an action has run, the plaintiff, to avoid the bar, must plead facts sufficient to show that the delay is excused. The question here is whether, taking the facts pleaded as true the complaint shows that plaintiff could not, through diligent inquiry, have learned that defendant negligently caused the injury until April, 1984. Because the demurrer was sustained, the complaint must be construed most strongly against the pleader. Consolidated Freightways v. Eddy, 266 Or. 385, 513 P.2d 1161 (1973). We presume that plaintiff has stated her cause of action as favorably as possible. State ex rel. Cox v. Wolfe, 25 Or.App. 551, 549 P.2d 1281 (1976).

Plaintiff would have us conclude that the allegations of her complaint sufficiently establish that she did not know, nor could she have known, facts from which a reasonable person could find that Laszlo was negligent before April, 1984. She contends that the relevant time for purposes of the Statute of Limitations was when she obtained copies of the Oregon Health Sciences University records in which Laszlo's negligence was disclosed. The complaint does not allege, however, that she was unaware of the existence of the records before that time. The contrary is, in fact, implicit in her allegation that she believed that the records would disclose only negligence in the prenatal care and delivery of her child. Had she examined the records which she believed contained some information relevant to a claim which she knew she had, she would have discovered the claim against Laszlo. A reasonably diligent person with the belief that certain records were relevant to her theory of the case would have, at the least, tried to obtain the records or otherwise discover the information contained in them. Plaintiff does not allege that she was unaware of the records, that they were unavailable or that they were otherwise secreted from her. In fact, she affirmatively alleges that she believed they contained information relevant to the claim she had already made. That is not an excuse for failure to discover their contents but a reason why their contents should have been discovered. In Peterson v. Multnomah County School District No. 1, 64 Or.App. 81, 668 P.2d 385 (1983), relied on by the dissent, plaintiff did not know that OSAA had any information relevant to any part of his injury claim. The complaint here fails to establish that a reasonably diligent person could not have discovered defendant's negligence until April, 1984.

Affirmed.

ROSSMAN, Judge, dissenting.

The majority concludes that the allegations in the complaint are insufficient to establish that a reasonably diligent person could not have discovered defendant Laszlo's negligence until April, 1984. It strikes down the complaint because of the lack of allegations that plaintiff was unaware of the Oregon Health Sciences University (OHSU) transport records, that they were unavailable or that they were otherwise secreted from her. I believe that the majority expects too much from this plaintiff. The complaint needs only to allege facts sufficient to raise a question of fact as to whether plaintiff, in the exercise of reasonable care, should have discovered the existence of her cause of action against Dr. Laszlo before April, 1984. By requiring that plaintiff in essence must allege facts showing that it was impossible for her to discover defendant's negligence sooner, the majority virtually nullifies the discovery rule. Therefore, I respectfully dissent.

This is the essence of the majority's reasoning: Plaintiff knew that she had a claim against the hospital and others (not including Laszlo) for their negligence in connection with pre-natal care and delivery; she was aware that certain OHSU records existed and might contain information relating to that obstetrical negligence; she did not know that she had a claim against Laszlo for the negligent intubation of the deceased child or that OHSU's records would reveal such a claim; however, because she knew that the records existed, she was not duly diligent as a matter of law because she did not examine the records and thereby discover her claim against Laszlo.

I have several difficulties with that reasoning. In the first place, nothing in the fifth amended complaint says when plaintiff knew that OHSU's records existed. Paragraph 10 of the complaint says that she obtained them on April 3, 1984, which was less than three years before she first named Laszlo as a defendant. The majority nevertheless says:

"The complaint does not allege, however, that she was unaware of the existence of the records before that time. The contrary is, in fact, implicit in her allegation that she believed that the records would disclose only negligence in the prenatal care and delivery of her child." (At 737.)

I find that unpersuasive. Plaintiff's allegation that she thought the OHSU records would relate only to her claim for negligent obstetrical care does not, on its face, have any bearing on when she became aware that there were such records. If she was required to plead anything about the temporal connection between her and the records, she did: she alleges she obtained them less than three years before she added Laszlo as a defendant. That was enough to get her past the motion to dismiss.

My second problem is that, even if the majority were correct in its understanding that the complaint affirmatively shows that plaintiff knew about the records more than three years before she named Laszlo, I disagree with its legal analysis.

Granting a motion to dismiss in this type of case is appropriate only when, taking the facts pleaded as true, the face of the complaint shows that, as a matter of law, the limitation period has run. As the majority observes, in a wrongful death action the limitation period commences when the plaintiff discovers or should have discovered that the harm was caused by the defendant. Shaughnessy v. Spray, 55 Or.App. 42, 637 P.2d 182 (1981), rev. den. 292 Or. 589, 644 P.2d 1130 (1982). A plaintiff has discovered a cause of action--thereby triggering the running of ORS...