Gaston v. Parsons

Decision Date23 February 1994
Citation318 Or. 247,864 P.2d 1319
PartiesTimothy M. GASTON, Respondent on Review, v. William R. PARSONS, M.D., William E. Coit, M.D., Petitioners on Review, and Good Samaritan Hospital and Medical Center, an Oregon corporation, Defendant. CC A9011-07199; CA A71991; SC S40098.
CourtOregon Supreme Court

Janet M. Schroer, of Hoffman, Hart & Wagner, Portland, argued the cause on behalf of petitioners on review. With her on the petition for review was David C. Landis, of Wood, Tatum, Wonacott & Landis, Portland.

J. Michael Alexander, of Burt, Swanson, Lathen, Alexander & McCann, Salem, argued the cause and filed a response to the petition for review on behalf of respondent on review.

David F. Sugerman, of Paul & Sugerman, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.

William L. Hallmark, of Hallmark, Keating & Abbott, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Ass'n.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ., and PETERSON, Senior Judge, Justice pro tempore.

UNIS, Justice.

The issue in this case is when the statute of limitations begins to run in a medical negligence action. Plaintiff filed this action in November 1990, seeking damages for harm suffered as a result of defendants' alleged negligence in connection with a surgical procedure performed in March 1987. Plaintiff's action was based both on (1) defendants' failure to obtain plaintiff's informed consent and (2) defendants' negligent performance of the surgery. 1 Defendants 2 moved for summary judgment on the ground that plaintiff had failed to file the action within the two-year statute of limitations, ORS 12.110(4). 3 The trial court granted the motion and entered judgment for defendants. The Court of Appeals reversed, holding that the informed consent claim was barred, but that the negligent surgery claim was not barred because the statute of limitations did not start to run on that claim until plaintiff knew or should have known of defendants' negligence. Gaston v. Parsons, 117 Or.App. 555, 844 P.2d 941 (1993). We allowed defendants' petition for review. 4 We affirm the decision of the Court of Appeals on different grounds.

On review of a summary judgment, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Christensen v. Murphy, 296 Or. 610, 613, 678 P.2d 1210 (1984). In reviewing the trial court's ruling on a motion for summary judgment, we view the evidence and all reasonable inferences in the light most favorable to the non-moving party (plaintiff in this case). Stephens v. Bohlman, 314 Or. 344, 346-47, 838 P.2d 600 (1992).

Plaintiff was a partial quadriplegic whose only functioning limb was his left arm. Plaintiff sought medical treatment from defendants for muscle spasms in his lower body. Defendant Parsons (Parsons) suggested a procedure that involved a spinal injection of a chemical solution to deaden the nerves that were causing the muscle spasms. Before the surgery, Parsons informed plaintiff of certain risks to the procedure, but not of any risk of possible loss of function in plaintiff's arm. Defendants performed the procedure on March 12, 1987. After the surgery, plaintiff noticed that his left arm was numb and did not function. Parsons assured plaintiff that the loss of function in his left arm was temporary and that use of his arm would return in six months to two years.

Plaintiff did not recover the use of his left arm within two years of the surgery. Plaintiff filed this action on November 14, 1990, alleging that defendants were negligent both in failing to obtain plaintiff's informed consent before the surgery and in negligently performing the surgery. Defendants moved for summary judgment, asserting that plaintiff's claims were barred by the statute of limitations, ORS 12.110(4), because they were filed more than two years after plaintiff became aware that his left arm was numb and did not function.

ORS 12.110(4) requires actions for claims arising from medical treatment to 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." 5 We need only to determine if a genuine issue of material fact exists as to when plaintiff discovered or in the exercise of reasonable care should have discovered his "injury" as that word is used in ORS 12.110(4). We find that a genuine issue of fact does exist.

In interpreting a statute, we seek to give effect to the intent of the legislature. ORS 174.020. The first step of that process is to examine the text and the context of the provision itself and other related statutes. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). Context includes case law interpreting those statutes. See State v. Sullens, 314 Or. 436, 443, 839 P.2d 708 (1992) (" 'When this court interprets a statute, that interpretation becomes a part of the statute as if written into it at the time of its enactment' ") (quoting Walther v SAIF, 312 Or. 147, 149, 817 P.2d 292 (1991)).

In examining the text and the context of ORS 12.110(4), we note that "injury" is not defined by statute or by case law. We also note that "injury" appears in other statutes of limitations. See ORS 12.110(1) (general tort); ORS 30.275(8) (tort claims against public bodies). This court has recognized that the discovery rule applies to each of those statutes. See Dowers Farms v. Lake County, 288 Or. 669, 681, 607 P.2d 1361 (1980) (ORS 30.275); U.S. Nat'l Bank v. Davies, 274 Or. 663, 668-69, 548 P.2d 966 (1976) (ORS 12.110(1)). This court's prior decisions indicate that the use of the word "injury" in statutes of limitations does not refer to injury in the ordinary sense--that is, physical harm. Instead, those decisions have recognized that discovery of "injury" is comprised of different components, some of which are harm, identity of the tortfeasor, and causation. See, e.g., Dowers Farms v. Lake County, supra, 288 Or. at 669, 607 P.2d 1361 (discovery of harm); Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980) (identity of the tortfeasor); Schiele v. Hobart Corporation, 284 Or. 483, 490, 587 P.2d 1010 (1978) (cause of harm).

In interpreting the text of a provision, we also consider "rules of construction that bear directly on the interpretation of the statutory provision in context." PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611, 859 P.2d 1143. One such well-established rule is that words in a statute that have a well-defined legal meaning are to be given that meaning in construing the statute. State v. Dumond, 270 Or. 854, 858, 530 P.2d 32 (1974); Cordon v. Gregg, 164 Or. 306, 311-12, 97 P.2d 732, 164 Or. 306, 101 P.2d 414 (1940). As used in ORS 12.110(4), "injury" is such a word. In the tort context, in which ORS 12.110(4) applies, "injury" is defined as the "invasion of any legally protected interest of another." Restatement (Second) Torts § 7(1) (1965). In other words, an "injury" is a legally cognizable harm.

The context of ORS 12.110 supports this interpretation of "injury." Another rule of construction that bears directly on how to read the text of the statute is the maxim ejusdem generis, which provides that where general words follow the enumeration of particular classes of things, the general words are to be construed as applicable to things of the same general nature or class. See State v. Brantley, 201 Or. 637, 645, 271 P.2d 668 (1954) (stating maxim). ORS 12.110(1) provides in part: "An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract * * * shall be commenced within two years." Applying the rule of ejusdem generis to ORS 12.110, the term "injury" falls within the class of words that precede it--in this instance, torts. Thus, our reading of "injury" in ORS 12.110(4) is consistent with that word's meaning in ORS 12.110(1) (i.e., "injury" means legally cognizable harm).

However, the text and context of ORS 12.110(4) are not unambiguous. We therefore consider legislative history. See PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611-12, 859 P.2d 1143 (when text and context are ambiguous, it is proper to consider legislative history). ORS 12.110(4) was first enacted in 1967. Or. Laws 1967, ch. 406, § 1. The legislature's understanding of the word "injury" at the time that statute was adopted is dispositive, unless subsequent amendments have altered that meaning. The original version of the statute provided:

"An action to recover damages for injuries to the person where in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood, or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, 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 provided that such action shall be commenced within seven years from the date of the treatment or operation upon which the action is based." Former ORS 12.110(4) (1967) (emphasis added).

Thus, the original version of ORS 12.110(4) made clear that "injury" was what formed the basis for an action, i.e., legally cognizable harm, and "harm" was what was caused by the "injury," i.e., untoward effects.

ORS 12.110(4) was intended to codify the discovery rule announced by this court in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971). 6 In examining Berry, we can discern what the legislature intended by the word "injury" in ORS 12.110(4). In Berry, this court held that the plaintiff, who...

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