Jones By and Through Jones v. Salem Hosp.

• Decision Date: 25 November 1988
• Citation: 762 P.2d 303,93 Or.App. 252
• Parties: Ronald Marvin JONES, By and Through his guardian ad litem, Joan A. JONES, Appellant, v. SALEM HOSPITAL; John Alsever, M.D.; Robert Sproed, M.D.; J. Thomas, M.D.; W.L. Holly, M.D.; James K. Lace, M.D.; and James K. Lace, M.D., P.C., Respondents. 85-2563; CA A44521. Reconsideration Denied
• Court: Oregon Court of Appeals

Page 303

762 P.2d 303

93 Or.App. 252

Ronald Marvin JONES, By and Through his guardian ad litem Joan A. JONES, Appellant, v. SALEM HOSPITAL; John Alsever, M.D.; Robert Sproed, M.D. J. Thomas, M.D.; W.L. Holly, M.D.; James K Lace, M.D.; and James K. Lace, M.D P.C., Respondents.

85-2563; CA A44521.

Reconsideration Denied Nov. 25, 1988.

Court of Appeals of Oregon.

Argued and Submitted June 13, 1988.

Decided Oct. 5, 1988.

Kathryn H. Clarke, Portland, argued the cause, for appellant. With her on the briefs was Robert D. Dames, Jr., Portland.

Keith J. Bauer, Salem, argued the cause, for respondent Salem Hospital. With him on the brief were Billy M. Sime and Parks & Bauer, Salem.

Mildred J. Carmack, Portland, argued the cause, for respondents John Alsever, M.D., and J. Thomas, M.D. With her on the brief were David K. Miller and Schwabe, Williamson & Wyatt, Portland.

Emil R. Berg, Portland, argued the cause, for respondent Robert Sproed, M.D. With him on the brief was Hallmark, Keating & Abbott, P.C., Portland.

Kim Jefferies, Portland, argued the cause, for respondents W.L. Holly, M.D., James K. Lace, M.D., and James K. Lace, M.D., P.C. On the brief were Barbara H. Thompson and Wood Tatum Mosser Brooke & Landis, Portland.

Before RICHARDSON, P.J., NEWMAN, J., and RIGGS, J. Pro Tem.

RICHARDSON, Presiding Judge.

Plaintiff in this medical malpractice action appeals from a judgment for the defendant hospital and physicians which was entered after the trial court granted defendants' motions to dismiss on the ground that the action was brought after the five-year qualified statute of ultimate repose had run. 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." (Emphasis supplied.)

The principal issue is whether the "misleading representations" which plaintiff alleges that defendants made tolled the statute as to his claims against some or all of them.

Plaintiff was born at the hospital on May 4, 1979. His mother ¹ first consulted defendant Sproed, a family practitioner, in November, 1978. He referred her to defendant Alsever, an obstetrician, in February, 1979. Sproed and Alsever both participated in her care until her admission to the hospital on May 3. Alsever and another obstetrician, defendant Thomas, attended plaintiff's mother through the time of his delivery by cesarean section. Thereafter, at the request of the two obstetricians and the hospital, defendants Holly and Lace, who are pediatricians on the hospital's medical staff, assisted in plaintiff's neonatal care through the time of his discharge from the hospital on May 18. Holly continued to provide pediatric care to plaintiff until May, 1981, and Alsever continued as a physician for plaintiff's mother until 1984. The other defendants had no further involvement in either patient's care after they were discharged from the hospital. The alleged result of defendants' alleged negligence was that plaintiff suffered developmental delay, brain damage, cerebral palsy, paraplegia and learning disabilities. He brought this action in October, 1985.

Plaintiff's allegations of negligence were:

"Defendant hospital was negligent on May 3 and May 4, 1979, in one or more of the following particulars:

"(a) In failing to have sonography equipment located in the maternity ward, thereby necessitating the transfer by ambulance of pregnant and laboring patients for ultrasound analysis, or, in the alternative, the performance of diagnostic procedures without the benefit of sonography equipment, as a result of which an amniocentesis by defendant Alsever caused a puncture of plaintiff's umbilical cord;

"(b) In having rules, regulations, and procedures which permitted defendant Alsever to perform an amniocentesis without benefit of ultrasound analysis;

"(c) In failing to provide a continuous fetal heart monitor machine to monitor the labor of plaintiff's mother and thereby assess fetal distress;

"(d) In failing to have available, at the time of Ronald's birth and during the first 24 hours of life, the person most qualified to resuscitate a jeopardized infant.

" * * *

"Defendants Alsever and Sproed, acting in concert, were negligent from February 26, 1979 through May 2, 1979, in one or more of the following particulars:

"(a) In failing to perform an ultrasound between February 26, 1979 and May 2, 1979, and thereby to diagnose placenta previa;

"(b) In failing to mandate strict bed rest for plaintiff's mother.

" * * *

"Defendants Alsever and Thomas, acting in concert, were negligent on May 3 and May 4, 1979, in one or more of the following particulars:

"(a) In performing amniocentesis without the benefit of ultrasound equipment, thereby puncturing the umbilical cord;

"(b) In failing to monitor plaintiff's condition prior to birth with a continuous fetal heart monitor;

"(c) In delaying cesarean section in the presence of signs and symptoms of fetal distress and of significant bleeding caused by placenta previa;

"(d) In failing to have available, at the time of Ronald's birth and during the first 24 hours of life, the person most qualified to resuscitate a jeopardized infant; and

"(e) In failing to mandate strict bed rest for plaintiff's mother prior to delivery.

" * * *

"In addition to the allegations in the paragraph above, defendants Alsever and Thomas, prior to the amniocentesis procedure, failed to inform plaintiff's mother of the material risk of puncture of the umbilical cord, and as a result, plaintiff's mother was unable to make an informed choice regarding her care and the care of Ronald.

" * * *

"Defendants Holly and Lace were negligent between May 4 and May 18, 1979 in one or more of the following particulars:

"(a) In failing to provide adequate oxygen to plaintiff for a period of approximately two and a half hours after birth;

"(b) In not obtaining blood samples from plaintiff promptly after birth for assessment of arterial blood gases; and

"(c) In failing to transfer plaintiff to a Level III neonatal care center promptly after birth."

Plaintiff pleaded that defendants made the following misrepresentations:

"Following plaintiff's birth, defendant Lace and Holly falsely represented in the hospital records and to plaintiff's parents that plaintiff had suffered no fetal distress, and that his sole problem was respiratory distress syndrome as a result of prematurity: these defendants omitted to disclose in the same hospital records and to plaintiff's parents that the amniocentesis procedure conducted prior to delivery had caused a puncture of the umbilical cord, that plaintiff had suffered heavy bleeding prior to delivery as a result and that there had been meconium staining indicative of fetal distress. Defendants Lace and Holly also misrepresented to plaintiff's parents that there had been no negligence in plaintiff's delivery, no birth injury to plaintiff, and that plaintiff's developmental delay was the result of prematurity alone and would eventually resolve. Defendants Lace and Holly also omitted to disclose to plaintiff's parents that diagnostic tests after birth had demonstrated plaintiff to be experiencing respiratory acidosis, and that there had been a delay of two and a half hours in providing adequate oxygen to plaintiff, which contributed to his subsequent developmental problems. The representations in the hospital records and to plaintiff's parents were made subsequent to the negligent conduct of which complaint is made * * *, and were not contemporaneous with it.

" * * *

"Defendants Alsever and Thomas failed to disclose to plaintiff's mother that the amniocentesis had caused a puncture of the umbilical cord and resulting bleeding to plaintiff, that the amniotic fluid had demonstrated the presence of blood, and that there had been meconium staining which had indicated fetal distress. Defendant Alsever failed to make these disclosures even when questioned by plaintiff's mother on June 30, 1981, regarding the possibility that a premature birth and subsequent developmental delay could occur again in another pregnancy, and requested information and reassurance from Dr. Alsever regarding the cause of plaintiff's injuries. Defendant Alsever also, on his own behalf and that of Dr. Sproed and Thomas, affirmatively misrepresented to plaintiff's mother that she had received good care during the course of her pregnancy and delivery, and that there had been no act or omission on the part of her physicians which could have contributed to plaintiff's problems."

Plaintiff did not allege that the hospital made any representations to his parents concerning his or his mother's diagnosis or treatment. He contends, however, that, because the hospital participated in the selection of Lace and Holly, "representing them to be members of [its] pediatric staff," they were its apparent agents, and it was therefore responsible for any misleading representations that they made.

In addition to his arguments concerning the tolling of the statute, plaintiff makes two others. He contends, first, that the hospital did not include the limitations issue in its original ORCP 21 motion, but raised it through a "supplemental Rule 21 motion." Therefore, plaintiff argues, ORCP 21 F precluded the issue's consideration, and the court...