Eldridge v. Eastmoreland General Hosp.

Decision Date01 August 1989
Citation769 P.2d 775,307 Or. 500
PartiesMichelle ELDRIDGE, Personal Representative of the Estate of Renee Eldridge, deceased child, Petitioner on Review, v. EASTMORELAND GENERAL HOSPITAL (Osteopathic), an Oregon corporation; and Robert Butler, Defendants and Theodore Laszlo (Pediatrician), Respondent on Review. TC A8402-01027; CA A41654; SC S34896. . *
CourtOregon Supreme Court

Deborah L. Le Meitour, Portland, argued the cause and filed the petition on behalf of the Petitioner on Review. With her on the petition was Charles Paulson, Portland.

Emil Berg, Portland, argued the cause and filed the response on behalf of the Respondent on Review. With him on the response was Hallmark, Keating and Abbott, Portland.

GILLETTE, Justice.

This is an action for wrongful death. Plaintiff's decedent was born May 9, 1981, and died September 7, 1981. Plaintiff was appointed personal representative of decedent's estate on December 8, 1983. On February 17, 1984, plaintiff, as personal representative, filed the present wrongful death action, naming Eastmoreland Gynecological Clinic, Eastmoreland General Hospital, Anthony Cortese and David Mack as defendants. On April 3, 1984, plaintiff obtained documents indicating that decedent had not been properly intubated when she had difficulty breathing at birth. On February 28, 1986, plaintiff amended the complaint to name Theodore Laszlo, the doctor who had intubated decedent, and his colleague, Robert Butler, as defendants. The only other defendant remaining in the case at that time was Eastmoreland General Hospital.

Laszlo was served with process on March 21, 1986. He moved to dismiss on the ground that the pleading showed that the action had not been commenced within the time allowed by statute. ORCP 21 A(9). The trial court granted the motion and entered judgment in favor of Laszlo pursuant to ORCP 67 B. Plaintiff appealed. 1 The Court of Appeals affirmed. Eldridge v. Eastmoreland General Hospital, 88 Or.App. 547, 746 P.2d 735 (1987). That court, with one judge dissenting, held that the limitation period in a wrongful death action commenced when the plaintiff discovered or should have discovered the harm was caused by defendant. However, the court further held that, in light of the fact that the complaint showed on its face that it had not been commenced against Laszlo until after the applicable statute of limitations had run, plaintiff had not alleged sufficient facts to excuse her failure to file her complaint timely. We hold that, no matter what plaintiff knew or should have known, the statute of limitations expired three years after the injury that caused decedent's death. The judgment of the circuit court and the decision of the Court of Appeals are affirmed.

Plaintiff argues that we should apply the so-called "discovery rule," which holds that a cause of action does not accrue until the plaintiff knows or should know that a tort was committed and that the defendant committed it. See, e.g., Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969). Were we to do so, plaintiff argues, she would be able to show by evidence that she did not discover the actual cause of decedent's death until less than three years prior to her joining Laszlo as a defendant. Laszlo argues that the discovery rule does not apply to wrongful death actions.

The discovery rule arose under a different statutory scheme from that involved here. ORS 12.010 provides:

"Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accured, except where a different limitation is prescribed by statute."

In both Frohs v. Greene, supra; and Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), this court held that the discovery rule applies to medical malpractice cases in which the limitations period was set by ORS chapter 12.

Frohs and Berry do not help plaintiff because the present case does not involve a limitations period established by ORS chapter 12. Plaintiff's complaint is for wrongful death, and ORS 30.020 sets the limitations period for wrongful death cases. ORS 12.010 does not apply.

The pertinent statute, ORS 30.020(1), provides:

"(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the occurrence of the injury causing the death of the decedent."

(Emphasis added.) The phrase "after the occurrence of the injury causing the death of the decedent" in ORS 30.020(1) is far less susceptible to judicial interpretation than the phrase "after the cause of action shall have accrued" in ORS 12.010. An injury causing death may occur earlier but, by definition, can occur no later than the death itself. Decedent died on September 7, 1981. Laszlo was not impleaded until February 28, 1986, more than three years after the injury that caused decedent's death. The action against Laszlo was not timely commenced. 2

The legislative history of the provision confirms that the legislature intended that the limitations period start at the time of injury, not at some later time. The phrase "after the occurrence of the injury causing the death" was first adopted in 1967. Prior to 1967, the statute had provided for a limitations period of two years from the death of the decedent. That provision is traceable to section 367 of the Deady Code. The 1967 revision occurred when the legislature removed a dollar ceiling on wrongful death recovery. Senator Cook, at a Senate Judiciary Committee hearing on May 15, 1967, noted that a person could die one day short of the expiration of the three year period and that the right to an action would be lost the next day. Representative Carson, a sponsor of the bill who testified at the Senate committee hearing, agreed that such a result was arbitrary, but...

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21 cases
  • Gladhart v. Oregon Vineyard Supply Co.
    • United States
    • Oregon Court of Appeals
    • December 22, 1999
    ...when it is discovered. That language, which is substantially similar to the language at issue in Eldridge [v. Eastmoreland General Hospital, 307 Or. 500, 769 P.2d 775 (1989),] and Moore [v. Mutual of Enumclaw, Ins. Co., 317 Or. 235, 855 P.2d 626 (1993)], `is not amenable to a discovery rule......
  • Collins v. Sotka
    • United States
    • Ohio Supreme Court
    • April 29, 1998
    ...Co. (1988), 402 Mass. 112, 521 N.E.2d 728; Presslaff v. Robins (1979), 168 N.J.Super. 543, 403 A.2d 939; Eldridge v. Eastmoreland Gen. Hosp. (1989), 307 Ore. 500, 769 P.2d 775; Diaz v. Westphal (1997), 40 Tex. Sup.Ct. J. 434, 941 S.W.2d 96. See, also, Farmers Bank & Trust Co. of Bardstown v......
  • Russell v. Ingersoll-Rand Co.
    • United States
    • Texas Supreme Court
    • October 14, 1992
    ...207, 105 N.E. 824, 825-26 (1914); Phelps v. Greco, 177 A.D.2d 559, 576 N.Y.S.2d 158, 159 (N.Y.App.Div.1991); Eldridge v. Eastmoreland Gen. Hosp., 307 Or. 500, 769 P.2d 775 (1989) (under 1967 statute, wrongful death actions are to be brought within three years of occurrence of the injury cau......
  • Silva v. City and County of Honolulu
    • United States
    • Hawaii Supreme Court
    • August 10, 2007
    ...A.D. 819, 292 N.Y.S. 750, 751 (1937); Best v. Town of Kinston, 106 N.C. 205, 10 S.E. 997, 997-98 (1890); Eldridge v. Eastmoreland Gen. Hosp., 307 Or. 500, 769 P.2d 775, 778 (1989) ("[T]he appointment of the personal representative is not relevant to the determination whether the limitations......
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1 books & journal articles
  • §30.1 Wrongful Death
    • United States
    • Torts (OSBar) Chapter 30 Wrongful Death and Survival of Personal Injury Actions
    • Invalid date
    ...rule was added to the wrongful death statute in 1991, legislatively reversing Eldridge v. Eastmoreland General Hosp., 307 Or 500, 769 P2d 775 (1989), which held that ORS 30.020 did not incorporate the discovery rule in ORS 12.110. The three-year period in ORS 30.020(1) is not tolled by the ......

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