Frohs v. Greene

• Decision Date: 02 April 1969
• Citation: 452 P.2d 564,253 Or. 1
• Parties: Mary FROHS, Appellant, v. Robert W. GREENE, David M. James, Guy R. McCutchan, Raymond W. Mangels, Jack B. Miller, Frank B. Packard, Edgar M. Rector, William C. Scott, Russell J. Alleman, Copartners, dba Medical Clinic, Joe Doe and Richard, Roe, and Emanuel Lutheran Charity Board, a corporation, Respondents.
• Court: Oregon Supreme Court

Page 564

452 P.2d 564

253 Or. 1

Mary FROHS, Appellant, v. Robert W. GREENE, David M. James, Guy R. McCutchan, Raymond W. Mangels, Jack B. Miller, Frank B. Packard, Edgar M Rector, William C. Scott, Russell J. Alleman, Copartners dba Medical Clinic, Joe Doe and Richard, Roe, and Emanuel Lutheran Charity Board, a corporation, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 7, 1969.

Decided April 2, 1969.

Roger Tilbury, Portland, argued the cause and filed briefs for appellant.

Phillip D. Chadsey, Portland, argued the cause for respondents. With him on the brief were George H. Fraser, Cleveland C. Cory, Robert H. Hollister and David C. Landis, Portland.

Before PERRY, C.J., and SLOAN, O'CONNELL, GOODWIN, DENECKE, HOLMAN and MENGLER ^*, JJ.

HOLMAN, Justice.

This is a negligence action for claimed malpractice by defendants doctors and hospital. Plaintiff appealed from a judgment dismissing her action after the trial court had sustained demurrers to her fourth amended complaint. The demurrers were based upon the statute of limitations. ¹

Plaintiff filed her complaint on May 10, 1967, alleging that in 1951 defendants negligently gave her injections of penicillin when they knew or should have known that plaintiff was allergic to penicillin. She also alleged that defendants were negligent in failing to take certain treatment to counter the injections.

Plaintiff contends that the statute of limitations did not begin to run until plaintiff discovered or in the exercise of reasonable care should have discovered that she had been tortiously injured by defendants. Defendants contend that the application of the discovery rule in medical malpractice cases should be limited to cases where foreign objects are negligently left in patients' bodies at the completion of operations. This court adopted the discovery rule in foreign object cases in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). The question is whether the holding of that case should be extended to cases of negligent diagnosis or treatment.

Defendants argue that such an extension of the rule would open great opportunities for fraudulent claims and would subject physicians to an intolerable burden of defending stale claims at a time when any practical opportunity for an actual recollection of the facts and circumstances had elapsed. Defendants point out that the existence of a foreign object in the body is an intrinsic attestation to the reliability of the proof of a negligent act and its relationship to the injury. This reliability, they claim, is not present in claims for negligent treatment or diagnosis. Cases which have refused to extend the discovery doctrine to negligent treatment and diagnosis are: Rothman v. Silber, 90 N.J. Super. 22, 216 A.2d 18 (1966); see Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156 (1965) as interpreted by Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159, 166 (1967); also see Owens v. White, 380 F.2d 310 (9th Cir. 1967).

This court in the case of Wilder v. Haworth, 187 Or. 688, 213 P.2d 797 (1950), refused to apply the discovery rule in a case of negligent diagnosis and treatment. However, this was prior to adoption of the discovery rule in foreign object cases by Berry v. Branner, Supra, which overruled the prior case of Vaughn v. Langmack, 236 Or. 542, 390 P.2d 142 (1964).

On a theoretical basis it is impossible to justify the applicability of the discovery rule to one kind of malpractice and not to another. The reason for the application of the discovery rule is the same in each instance. It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists. This is true whether the malpractice consists of leaving a foreign object in the body or whether it consists of faulty diagnosis or treatment. The following language used in Berry v. Branner, Supra, at page 312, 421 P.2d at page 998, when construing the Oregon statute, is equally applicable to all kinds of malpractice:

'* * * To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, 'You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,' makes a mockery of the law. * * *.'

We do not believe that the danger of spurious claims is so great as to necessitate the infliction of injustice on persons having legitimate claims which were undiscoverable by the exercise of ordinary care prior to the lapse of two years from the time of the act inflicting the injury. Nor do we believe the legislature intended such a result. ² We therefore overrule our former decision in Wilder v. Haworth, Supra, and any similar decisions. Cases in harmony with our present holding are: Yoshizaki v. Hilo Hospital, 433 P.2d 220 (Hawaii S.Ct. 1967); Wilkinson v. Harrington, R.I., 243 A.2d 745 (1968); Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962).

The allegations of plaintiff's complaint are as follows:

'Within a short time after such injections, plaintiff experienced severe pains, but was assured by defendants that any possible problems connected with the injection of penicillin had been counteracted and would give rise to no further difficulty. Such symptoms were complex and plaintiff was required and did seek further treatment from defendants, as well as other physicians and medical personnel in an effort to find alternative explanations for her illnesses. Defendant doctors, when consulted by plaintiff, still continued to assure her that the penicillin injections given her in 1951 were in no way causing her difficulties. The other doctors and medical personnel with whom plaintiff consulted, and who are not defendants, did not participate in the 1951 procedures (and for this reason did not have the benefit of the first hand information available to defendants) were not able to determine the cause of her difficulties. Plaintiff diligently and continuously sought to determine the alternative cause of her physical difficulties. It was not until May 11, 1965, when surgery was performed, and an artery was removed from within plaintiff's temple, that it was first shown that her problems were attributable to defendants' negligent treatment in 1951. Such representations by defendants were...