Stephens v. Bohlman

• Decision Date: 14 August 1991
• Citation: 813 P.2d 43,107 Or.App. 533
• Parties: Geraldine STEPHENS, Personal Representative for the Estate of Pamela Jennings, Deceased, Appellant, v. John BOHLMAN, M.D.; Karl Ordelheide, M.D.; and North Lincoln Hospital, Respondents. 881548; CA A63947.
• Court: Oregon Court of Appeals

Page 43

813 P.2d 43

107 Or.App. 533

Geraldine STEPHENS, Personal Representative for the Estate of Pamela Jennings, Deceased, Appellant, v. John BOHLMAN, M.D.; Karl Ordelheide, M.D.; and North Lincoln Hospital, Respondents.

881548; CA A63947.

Court of Appeals of Oregon.

Argued and Submitted Jan. 25, 1991.

Decided June 12, 1991.

Reconsideration Denied Aug. 14, 1991.

J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Burt, Swanson, Lathen, Alexander & McCann, Salem.

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

No appearance by respondents John Bohlman, M.D., and Karl Ordelheide, M.D.

Before WARREN, P.J., JOSEPH, C.J., and EDMONDS, J.

WARREN, Presiding Judge.

Plaintiff, as personal representative of the estate of Pamela Jennings, brought this wrongful death action against North Lincoln Hospital (defendant). ¹ The trial court granted defendant's motion for summary judgment on the ground that plaintiff had not given a tort claim notice within one year, as required by 30.275(2)(a). Plaintiff appeals, and we reverse.

We relate the facts in the light most favorable to plaintiff. Welch v. Bancorp Management Services, 296 Or. 713, 716, 679 P.2d 866 (1984). Jennings died May 7, 1986. She had been admitted to the hospital on April 29, 1986, because of chicken pox, and was put on a mechanical respirator. On May 7, she coughed a breathing tube out of her trachea, and a nurse reinserted it, but into her esophagus. Plaintiff, Jennings' mother, was in the room when that occurred, but she could not see what the nurse was doing. Within minutes, Jennings went into respiratory arrest, and plaintiff had to leave the room. After 20 minutes of unsuccessfully trying to treat Jennings for bilateral pneumothorax, Dr. Bohlman discovered that the tube was in her esophagus. By that time, it was too late to save her.

After Jennings died, Bohlman informed plaintiff that she had died from chicken pox and that her heart had stopped. A few weeks later plaintiff again met with Bohlman, who again told her that Jennings had died from chicken pox and did not mention the misplacement of the breathing tube. Plaintiff testified that she believed Bohlman that Jennings had died from chicken pox.

On May 21, 1986, plaintiff received a copy of the preliminary autopsy report, which includes:

"The following day, [Jennings] again coughed out her nasotracheal tube about the same distance and her oxygen saturation as measured by an ear oximeter dropped from closed [sic ] to 90 to around 70%. 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."

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 Bohlman and a radiology report. Plaintiff acknowledges that she did not seek those records and was not prevented from doing so. Both the death summary and the radiology report confirmed that the breathing tube was inserted into the esophagus.

Plaintiff discussed the report with her daughter, Sandra, after they had read it. Plaintiff swore in an affidavit that she did not understand the autopsy report. Dr. Brady reviewed the medical record and the autopsy report and concluded that a lay person could not glean from them what had happened, but someone who understood medical terminology could infer that Jennings died from the erroneous placement of the breathing tube.

At some point in 1987, Sandra told plaintiff that she had called an attorney because of doubts that she had about her sister's death, but she did not tell plaintiff what her doubts were. On July 17, 1987, plaintiff met with counsel after Jennings' insurance company denied the claim for life insurance benefits under an accidental death policy, because Jennings had died from a disease. Plaintiff and her attorney then began an investigation of the death. She gave defendant a tort claim notice on April 29, 1988.

Defendant is operated by the North Lincoln Health District, a public body. ² The parties do not dispute that defendant was entitled to receive a notice of claim within one year after the "alleged loss or injury." ORS 30.275(2)(a). ³ Plaintiff claims that she gave notice within a year after the date when she discovered, or reasonably should have discovered, the injury.

ORS 30.275 contains a two-year limitation period for actions against public bodies, ORS 30.275(8), and a shorter period within which to give notice of the claim. ORS 30.275(2). In Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980), the Supreme Court held, on the basis of statutory construction, that the two year limitation begins to run from the date of discovery of the cause of action. In Adams v. Oregon State Police, 289 Or. 233, 611 P.2d 1153 (1980), the Court held that the discovery rule also applies to the notice provision, reasoning that the two periods should commence on the same date. Defendant claims that the discovery rule does not apply to the notice limitation when the action is for wrongful death, relying on Eldridge v. Eastmoreland General Hospital, 307 Or. 500, 769 P.2d 775 (1989). That case held that the discovery rule does not apply to the general wrongful death Statute of Limitations, ORS 30.020(1), because of its specific language that the action shall be commenced within three years "after the occurrence of the injury causing the death of the decedent." That interpretation of ORS 30.020(1) has no bearing on the interpretation of the different language in ORS 30.275. Under ORS 30.275,...