Kastle v. Salem Hosp.

• Decision Date: 15 March 2017
• Docket Number: A159922
• Citation: 284 Or.App. 342,392 P.3d 374
• Parties: Ray F. KASTLE, guardian ad litem of Shaun Kastle, an incapacitated adult, Plaintiff-Appellant, v. SALEM HOSPITAL; Jack Buchanan, MD; Martin Johnson, MD ; and Kelli Kruse, Defendants, and Saleh Ismail, MD, and Salem Pulmonary Associates, PC., Defendants-Respondents.
• Court: Oregon Court of Appeals

284 Or.App. 342

392 P.3d 374

Ray F. KASTLE, guardian ad litem of Shaun Kastle, an incapacitated adult, Plaintiff-Appellant,

v.SALEM HOSPITAL; Jack Buchanan, MD; Martin Johnson, MD ; and Kelli Kruse, Defendants,andSaleh Ismail, MD, and Salem Pulmonary Associates, PC., Defendants-Respondents.

A159922

Court of Appeals of Oregon.

Argued and submitted August 17, 2016.

March 15, 2017

Kathryn M. Pratt argued the cause for appellant. On the opening brief was Brian R. Whitehead. With her on the reply brief was Pratt Law Office LLC.

Jay W. Beattie, Portland, argued the cause for respondents. With him on the brief were Jeffrey S. Young and Lindsay Hart, LLP.

Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

DEVORE, J.

This appeal concerns the application of the statute of limitations to a complaint for medical malpractice involving newly added defendants. Plaintiff alleged that negligent treatment of low sodium levels in his blood serum caused him to develop a neurological disorder

, central pontine myelinolysis (CPM). Invoking ORCP 21 A(9),¹ defendants moved to dismiss the complaint as barred by the statute of limitations for medical negligence, ORS 12.110(4).² Plaintiff moved to amend the complaint to plead delayed discovery of his claim and to plead a disabling mental condition, which would toll the statute of limitations.³ The trial court denied plaintiff's motion to amend and granted defendants' motion to dismiss with prejudice.

On appeal, the parties primarily dispute whether the operative complaint shows that plaintiff failed to commence the action within the time limited by statute after he discovered or reasonably should have discovered his claim. Plaintiff makes other assignments of error, but we do not reach them because they become moot or unnecessary after determination of the primary issue. On the primary issue, we conclude that the complaint does not show on its face that plaintiff commenced this action outside the limitations period. Because the trial court erred, we reverse and remand for further proceedings.

In reviewing an order granting dismissal under ORCP 21 A(9), our review is limited to the face of the operative complaint. Kelly v. Lessner , 224 Or.App. 31, 33, 197 P.3d 52 (2008). In this case, that is the third amended complaint.⁴ "In conducting that review, we assume the truth of all allegations in the complaint and give the plaintiff, as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations." Id.

The facts, as alleged, are as follows. Plaintiff experienced hyponatremia

, a medical condition involving a low sodium level in his blood serum. On or about August 17, 2011, plaintiff sought diagnosis and treatment at the Salem Hospital's urgent care clinic. That care included testing his serum sodium and potassium levels. On or about August 19, 2011, plaintiff returned to the hospital's emergency room, reporting seizures and fainting episodes. The hospital tested plaintiff's blood again and found that his sodium and potassium measures had declined to life-threatening levels. An emergency room physician ordered intravenous sodium replacement therapy at a level below 10 millimoles per liter (mmol/L) in a twenty-four hour period. Serum sodium therapy should be kept below that amount in order to prevent the development of CPM. On the afternoon of August 19, plaintiff was transferred to the hospital's intensive care unit, where Dr. Johnson ordered sodium replacement therapy that allegedly resulted in plaintiff's serum sodium level increasing more than 10 mmol/L in a twenty-four hour period.

On August 19 and 20, 2011, Dr. Ismail became responsible for plaintiff's care. Ismail allegedly failed to monitor so as to ensure that nurses did not administer too much intravenous saline to plaintiff. Although saline had been discontinued due to previously improper sodium replacement, Ismail allegedly was responsible for resumption of intravenous saline.

On November 19, 2012, plaintiff filed this action for medical malpractice against Salem Hospital and several individuals, who are now no longer material to the case.

On October 30, 2014, plaintiff filed a third amended complaint so as to include as new defendants, Ismail and Salem Pulmonary Associates (SPA), alleging that Ismail was negligent in treating plaintiff and that SPA should be vicariously liable for that treatment. ⁵

Sometime later, defendants filed a motion to dismiss the complaint, asserting the statute of limitations. The trial court granted defendants' motion, concluding that:

"I do find that in the third amended complaint, that on its face it is time-barred, and that there was nothing alleged in the third amended complaint that would have tolled the time frame. There was nothing that would have indicated that there was something that did not or could not have been discovered or any mention of the insanity. Based on that, I am persuaded by counsel's argument that it is outside the time frame and so dismissal is appropriate as to those defendants and that claim."

The court dismissed the complaint with prejudice.

On appeal, plaintiff argues, in part, that the court erred because the complaint does not show on its face that plaintiff discovered Ismail and SPA's role in his injury more than two years before he filed claims against them. He argues that, at the pleading stage in a complex claim like medical malpractice, a plaintiff cannot be assumed to have discovered his claim or the responsible defendants at a time outside the statute of limitations. Moreover, he argues, he should not be required in his complaint to plead delayed discovery because his task is only to state a claim, not to anticipate a motion to dismiss or an affirmative defense of limitations.

Taking just the reverse view, defendants argue that the complaint is "patently time-barred" because the complaint fails to allege facts from which it could be inferred that plaintiff discovered his claim against defendants less than two years before filing the amended complaint against them. In effect, defendants contend that plaintiff should have pleaded that he could not have reasonably discovered the claim until a date within the statute of limitations in order to avoid an implicit assumption that he should have discovered the claim much sooner. In other words, defendants contend that plaintiff should plead in anticipation of a limitations defense in order to avoid dismissal.

Further, defendants argue that a statement plaintiff's counsel made in opposition to dismissal permits an inference favoring defendants that, more than two years before the operative complaint, plaintiff should have discovered his injury, its cause, and the role of Ismael and SPA.⁶

Finally, defendants have particular criticism for the amendment that made SPA a new defendant, alleged to be vicariously liable for Johnson and Ismail. Defendants argue that the amendment was untimely because Johnson was already named a defendant in the original complaint and the employee relationship between SPA and Johnson was "inherently discoverable." Defendants contend that SPA should have been discovered as related and liable for Johnson earlier.

We start where everyone agrees. A medical malpractice action must be filed within two years of the date on which the claim accrues. ORS 12.010 ; ORS 12.110(4). By statute, a medical malpractice action accrues "when the injury is first discovered or in the exercise of reasonable care should have been discovered." ORS 12.110(4) ; Gaston v. Parsons , 318 Or. 247, 254, 864 P.2d 1319 (1994) (noting that ORS 12.110(4) was intended to codify the court's discovery rule). An "injury," within the meaning of ORS 12.110(4), consists of harm, causation, and tortious conduct. Gaston , 318 Or. at 255, 864 P.2d 1319. Therefore, a medical malpractice claim accrues, and the statute of limitations begins to run, when the plaintiff knows or, in the exercise of reasonable care, should have known facts which would make a reasonable person aware of a substantial possibility that (1) plaintiff suffered harm, (2) the harm was caused by the defendant's acts and, (3) the defendant's acts were tortious. Id.

To defeat a motion to dismiss under ORCP 21 A(9), "a complaint does not have to show that the action is timely; it suffices if the complaint does not reveal on its face that the action is not timely." Munsey v. Plumbers' Local No. 51 , 85 Or.App. 396, 399, 736 P.2d 615 (1987) (emphasis is original). That fundamental principle is rooted in the text of ORCP 21 A(9) and in recognition that the limitations issue is an affirmative defense. See ORCP 19 B ("In pleading to a preceding pleading, a party shall set forth affirmatively * * * [the] statute of limitations * * * and any other matter constituting an avoidance or affirmative defense. * * * "). In relevant part, ORCP 21 A(9) provides:

"Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: * * * (9) that the pleading shows that the action has not been commenced within the time limited by statute."

The rule permits a defendant to file a motion raising a limitations defense only when a plaintiff's "pleading shows" that the action is untimely. At this early stage in a case, the sole reference by which a limitations defense is evaluated is the plaintiff's complaint. In that way, the limitations defense in ORCP 21 A(9) differs from other defenses listed in ORCP 21 A(1) through (7), because, as to those defenses, the court may entertain "affidavits, declarations and other evidence" when "the facts constituting such defenses do not appear on the face of" the plaintiff's complaint. ORCP 21 A. In that way, a motion to dismiss also differs from a motion for summary judgment, because, on summary judgment,...