Stephens v. Bohlman

• Decision Date: 01 October 1992
• Citation: 314 Or. 344,838 P.2d 600
• Parties: Geraldine STEPHENS, Personal Representative for the Estate of Pamela Jennings, Deceased, Respondent on Review, v. John BOHLMAN, M.D.; Karl Ordelheide, M.D., Respondents, and North Lincoln Hospital, Petitioner on Review. CC 881548; CA A63947; SC S38317.
• Court: Oregon Supreme Court

Page 600

838 P.2d 600

314 Or. 344

Geraldine STEPHENS, Personal Representative for the Estate

of Pamela Jennings, Deceased, Respondent on Review, v. John BOHLMAN, M.D.; Karl Ordelheide, M.D., Respondents, and North Lincoln Hospital, Petitioner on Review.

CC 881548; CA A63947; SC S38317.

Supreme Court of Oregon.

Argued and Submitted March 3, 1992.

Decided Oct. 1, 1992.

Keith J. Bauer, of Parks, Bauer & Sime, Salem, argued the cause for petitioner on review. With him on the petition was Billy M. Sime, Salem.

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

Before CARSON, C.J., and PETERSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

VAN HOOMISSEN, Justice.

Plaintiff, Geraldine Stephens, as personal representative of the estate of her daughter, Pamela Jennings, brought this wrongful death action against defendant North Lincoln Hospital. ¹ The trial court granted defendant's motion for summary judgment on the ground that plaintiff had not given defendant a timely tort claim notice. ORS 30.275(2)(a). ² The Court of Appeals reversed, holding that there is a genuine issue of material fact as to when plaintiff knew or should have known of her claim. Stephens v. Bohlman, 107 Or.App. 533, 813 P.2d 43 (1991).

We allowed defendant's petition for review to consider whether the "discovery rule" ³ is applicable to the time within which a notice of claim for wrongful death must be made under ORS 30.275(2)(a) and, if so, whether as a matter of law plaintiff's receipt of a preliminary autopsy report constituted discovery of the injury. We affirm the decision of the Court of Appeals.

We review the record on summary judgment in the light most favorable to plaintiff, the person against whom summary judgment was granted. Whitaker v. Bank of Newport, 313 Or. 450, 452, 836 P.2d 695 (1992).

On April 29, 1986, Pamela Jennings was admitted to North Lincoln Hospital. She was diagnosed as having chicken pox and was placed on a mechanical respirator. On May 7, she coughed a breathing tube out of her trachea. A nurse attempted to reinsert the tube, but misplaced it in Jennings' esophagus rather than in her trachea. Within minutes, Jennings went into respiratory arrest. After 20 minutes of unsuccessfully trying to treat Jennings for bilateral pneumothorax, Dr. Bohlman discovered that the breathing tube was in her esophagus. Jennings died shortly thereafter.

Dr. Bohlman told plaintiff that Jennings had died from chicken pox, and that her heart had stopped. A few weeks later, Dr. Bohlman again told plaintiff that Jennings had died from chicken pox. Plaintiff testified that she believed Dr. Bohlman when he told her that Jennings had died from chicken pox. In his affidavit, Dr. Bohlman stated that he mentioned the misplacement of the breathing tube to the family. The family members denied that he did so. Jennings' death certificate, signed by Dr. Bohlman's partner, Dr. Ordelheide, listed the immediate cause of her death as respiratory failure due to chicken pox.

On May 21, 1986, plaintiff received and read a copy of the preliminary autopsy report, which states in part:

"[Jennings] coughed out her nasotracheal tube * * *. The nasotracheal tube was replaced by a nurse and the cuff inflated. Within two minutes of the time the tube had been coughed up, the patient had marked increase in anxiety, became pale and then 'gray.' One minute later, the patient was nonresponsive to verbal command, touch or painful stimuli and a Code 99 was called. Apparently breath sounds were heard in each lung but because of the patient's distress, a tension pneumothorax was suspected and ultimate thoracotomy tubes were placed in each chest cavity and these yielded only a small amount of serosanguinous fluid. Ultimately, a nurse anesthetist arrived in response to the code and found the nasotracheal tube in the esophagus. He placed a smaller tube with some difficulty because of edema into the trachea. The patient developed ventricular fibrillation and asystole, which were treated, but without the development of a stable cardiac complex and adequate blood pressure."

Thereafter, plaintiff discussed the autopsy report with her daughter, Sandra, who also had read it. Plaintiff testified that she did not understand the report. Within six months after Jennings' death, plaintiff was "curious" about the cause of the death.

Sometime in 1987, plaintiff's daughter, Sandra, told plaintiff that she had consulted an attorney because of her doubts about the cause of Jennings' death. However, Sandra did not explain to plaintiff what her doubts were.

Plaintiff's witness, Dr. Brady, reviewed the medical record and the autopsy report. He stated in an affidavit that, although a lay person could not tell from the report what caused Jennings' death, a person with knowledge of medical terminology could infer that she had died because the nurse had misplaced the breathing tube.

The hospital also had on file as part of Jennings' hospital chart a history and physical examination report, a special care flow sheet, a death summary prepared by Dr. Bohlman, and a radiology report. Both the death summary and the radiology report disclosed that the breathing tube was inserted into Jennings' esophagus. Plaintiff acknowledges that she neither sought those records nor was prevented from doing so.

On July 17, 1987, plaintiff consulted a lawyer, who began an investigation of Jennings' death. ⁴ At that time, plaintiff contends that she first became aware of the misplacement of the breathing tube. On April 29, 1988, plaintiff gave defendant a tort claim notice. ORS 30.275(2)(a). Plaintiff does not dispute that defendant was entitled to receive a notice. ⁵ The trial court granted defendant's motion for summary judgment on the ground that the notice was not timely filed. Plaintiff appealed.

The Court of Appeals held that the one-year limitation period on giving a tort claim notice under ORS 30.275(2) begins to run from the date when a plaintiff has a reasonable opportunity to discover the injury and the identity of the party responsible for that injury. The court rejected defendant's argument that, as a matter of law, plaintiff knew or should have known the basis of the claim before July 17, 1987, when she first contacted an attorney, and held that there is a genuine issue of material fact about when plaintiff knew or should have known of the claim. Accordingly, the court reversed and remanded the case for trial. We allowed defendant's petition for review to examine whether the discovery rule extends the time for filing a notice of tort claim in a wrongful death claim against a public body and, if so, whether there is a question of fact concerning when plaintiff knew or should have known of the claim.

In support of its contention that the Court of Appeals erred in reversing the trial court's judgment, defendant first argues that the discovery rule does not extend the time for filing a notice of tort claim in a wrongful death claim against a public body and, therefore, plaintiff's claims are barred because plaintiff failed to provide defendant with a notice of tort claim within one year after Jennings' death. Defendant relies primarily on Eldridge v. Eastmoreland General Hospital 307 Or. 500, 769 P.2d 775 (1989). That case held that the discovery rule did not apply under ORS 30.020(1) (1989), a wrongful death statute which does not apply to tort actions against public bodies. Defendant argues, however, that the language of ORS 30.020(1) was similar to that of ORS 30.275 and that that shows the legislature did not intend the discovery rule to apply in wrongful death claims against public bodies under ORS 30.275. Defendant is mistaken. In Eldridge v. Eastmoreland General Hospital, supra, 307 Or. at 505, 769 P.2d 775, this court held that the legislative history of ORS 30.020(1) made it clear that the legislature specifically intended that the discovery rule would not apply when it enacted that statute. Defendant points to no similar legislative history here, and we know of none.

In Dower Farms v. Lake County, 288 Or. 669, 681, 607 P.2d 1361 (1980), this court held that the two-year Tort Claims Act statute of limitations did not begin to run until a plaintiff discovers the harm caused by a defendant's actions. In that case, this court noted that the Tort Claims Act was intended to be remedial legislation, allowing all citizens to seek redress for any tort committed by their governments, except for the specific immunities listed in the statutes, and that a narrow construction of the provisions of the Act would be contrary to its general purposes. Id. at 680, 607 P.2d 1361.

In Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980), this court again applied the discovery rule to a provision of the Tort Claims Act, holding that the notice period (then contained in ORS 30.275(1)) commenced on the date the plaintiff discovered the identity of the tortfeasor, rather than on the date of the incident precipitating the plaintiff's injury. In Adams, this court followed the rationale of Berry v. Branner, 245 Or. 307, 312, 421 P.2d 996 (1966):

"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 have a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,' makes a mockery of the law."

In Eldridge v. Eastmoreland General Hospital, supra, 307 Or. at 505, 769 P.2d 775, we noted that "Adams and Dower Farms thus were cases of statutory interpretation in which this court found no reason in statutory language to defeat the function and purpose...