Raethke v. Oregon Health Sciences University

• Decision Date: 09 December 1992
• Citation: 115 Or.App. 195,837 P.2d 977
• Parties: , 77 Ed. Law Rep. 951 Jody I. RAETHKE, an individual, Appellant, v. OREGON HEALTH SCIENCES UNIVERSITY, an agency of the State of Oregon, Respondent. 8906-03222; CA A65364. Court of Appeals of Oregon, In Banc
• Court: Oregon Court of Appeals

Page 977

837 P.2d 977

115 Or.App. 195, 77 Ed. Law Rep. 951

Jody I. RAETHKE, an individual, Appellant, v. OREGON HEALTH SCIENCES UNIVERSITY, an agency of the State of Oregon, Respondent.

8906-03222; CA A65364.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted July 8, 1991.

Resubmitted in banc July 1, 1992.

Decided Sept. 16, 1992.

Reconsideration Denied Dec. 9, 1992.

Gordon T. Carey, Jr., Portland, argued the cause and filed the briefs for appellant.

John T. Bagg, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.

BUTTLER, Judge.

Plaintiff appeals a summary judgment for defendant, a public body, in this action for medical malpractice. The sole issue is whether she gave timely notice of claim under ORS 30.275. ¹

In January, 1985, several weeks after plaintiff had given birth, she was a patient at defendant Oregon Health Sciences University. A doctor at the University performed an emergency dilation and curettage (D & C) to remedy severe uterine bleeding. During the next two years, plaintiff and her husband attempted to conceive another child, but were unsuccessful. Plaintiff consulted Dr. Hanschka to determine whether there were any medical reasons for her inability to become pregnant. In February, 1987, Hanschka ordered a hysterosalpingogram, which showed abnormal structures in her uterus. He informed her that he did not know whether the abnormalities were congenital and recommended further diagnostic procedures.

A few weeks later, plaintiff consulted Dr. Dishman, who performed additional tests and discovered that one of plaintiff's Fallopian tubes was inside her uterus, acting as a natural intrauterine device that prevented implantation of fertilized eggs. He explained the condition to plaintiff and advised her that it would have to be removed before she could become pregnant. Dishman told her that he believed that the problem might have been caused by the D & C in 1985. Plaintiff expressed concern that, without both Fallopian tubes, her chances of becoming pregnant would decrease. Dishman explained that the remaining tube would carry ova from both ovaries, completely compensating for the removed tube.

Surgery was performed on July 20, 1987, after which plaintiff was informed that "there was no reason why" she should not be able to have another child. For the next year and a half, she attempted unsuccessfully to become pregnant. In January, 1989, Dishman performed another hysterosalpingogram, after which he concluded that plaintiff "may be permanently infertile." He so informed her on February 6, 1989. On June 8, 1989, 122 days after she learned that she might be permanently infertile, she filed a notice of claim with defendant; on the next day, she filed her complaint. Defendant moved for summary judgment, asserting that the Statute of Limitations had run, because the claim had accrued in early 1987, when plaintiff had learned that she had been injured and that defendant's negligence was probably the cause. Plaintiff assigns error to the granting of that motion.

We view the record in the light most favorable to plaintiff, giving her the benefit of all reasonable inferences of fact. As the moving party, defendant must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Seeborg v. General Motors Corp., 284 Or. 695, 699, 588 P.2d 1100 (1978).

A cause of action for personal injury accrues from the date the injury is, or should have been, discovered, not from the time the full extent of damages is ascertained. Guiley v. Hammaker, 55 Or.App. 921, 640 P.2d 664, rev. den. 292 Or. 863, 648 P.2d 850 (1982). Discovery occurs when a plaintiff is or should be aware of (1) the injury, (2) the cause of the injury and (3) the identity of the tortfeasor. Duyck v. Tualatin Valley Irrigation Dist., 304 Or. 151, 742 P.2d 1176 (1987).

The question is when did plaintiff discover her injury. She acknowledges that, in June, 1987, she learned that the surgery performed by defendant's agents in defendant's hospital in January, 1985, had caused one of her Fallopian tubes to be displaced inside her uterus. She was advised that that condition was the probable cause of her inability to become pregnant and that the condition probably could be cured by a surgical procedure, which was performed. Plaintiff knew then that she had been injured by the surgery performed at defendant's facility, although she did not know the full extent of the injury. She understood that Dishman, who had diagnosed her condition and performed the second surgery, considered defendant's performance of the 1985 surgery to be "malpractice." She says that she did not pursue her claim at that time, because she thought that she was only "temporarily infertile" and that the second surgical procedure would cure that condition. She argues that a separate and distinct claim accrued in January, 1989, when she learned that she was permanently infertile.

The cases are clear, however, that one may not avoid the Statute of Limitations by characterizing the harm as two different kinds of injuries rather than one injury that has caused more damage than was originally contemplated. There is no significant difference between this case and Gannon v. Rogue Valley Medical Center, 92 Or.App. 314, 758 P.2d 873, rev. den. 307 Or. 145, 765 P.2d 813 (1988). In that case, the plaintiff had contracted meningitis as a result of the defendant's failure properly to perform a myelogram. She took no action when she learned that the defendant's negligence had caused her meningitis, because she recovered from it and believed that her injuries were not serious enough to file a lawsuit. Later, she developed organic brain syndrome as a result of the meningitis. We held that her cause of action had accrued when she learned that the defendant had caused her meningitis, not when she developed organic brain syndrome; therefore, it was barred by the Statute of Limitations.

Similarly, in Guiley v. Hammaker, 55 Or.App. 921, 640 P.2d 664, rev. den. 292 Or. 863, 648 P.2d 850 (1982), a 14-day-old child suffered what appeared to be only a minor abrasion from an automobile accident, but 7 years later learned that that accident had probably been the cause of damage to his optic nerve. We held that the plaintiff's cause of action had accrued at the time of the accident, because he knew then that he had been injured and that the accident was attributable to the negligence of the defendant. The fact that he initially thought that his injury was only minor did not mean that a new cause of action accrued when he later learned that he had suffered an unanticipated kind of harm. So, too, in Hoffman v. Rockey, 55 Or.App. 658, 639 P.2d 1284 (1982), we held that the plaintiff knew that he was harmed when he had an infection in his leg shortly after surgery; he did not have a new cause of action when he learned that his leg would have to be...