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Eldridge v. Eastmoreland General Hospital

Oregon Supreme Court
Mar 7, 1989
307 Or. 500 (Or. 1989)

Summary

holding "no matter what plaintiff knew or should have known," statute of limitations on plaintiff's wrongful-death action expired three years after decedent's death

Summary of this case from Lafage v. Jani

Opinion

TC A8402-01027; CA A41654; SC S34896

Argued and submitted July 14, 1988

Court of Appeals March 7, 1989

In Banc

Lent, J., retired on September 30, 1988, and Campbell, J., retired on December 31, 1988.

On review from the Court of Appeals.

Appeal from Multnomah County Circuit Court. Honorable Charles S. Crookham, Judge. 88 Or. App. 547, 746 P.2d 735 (1987).

Deborah L. Le Meitour, Portland, argued the cause and filed the petition on behalf of the petitioner on review. With her on the petition was Charles Paulson, Portland.

Emil Berg, Portland, argued the cause and filed the response on behalf of the respondent on review. With him on the response was Hallmark, Keating and Abbott, Portland.


GILLETTE, J.

The judgment of the circuit court is affirmed. The decision of the Court of Appeals is affirmed, but on different grounds than those stated by the Court of Appeals.


This is an action for wrongful death. Plaintiff's decedent was born May 9, 1981, and died September 7, 1981. Plaintiff was appointed personal representative of decedent's estate on December 8, 1983. On February 17, 1984, plaintiff, as personal representative, filed the present wrongful death action, naming Eastmoreland Gynecological Clinic, Eastmoreland General Hospital, Anthony Cortese and David Mack as defendants. On April 3, 1984, plaintiff obtained documents indicating that decedent had not been properly intubated when she had difficulty breathing at birth. On February 28, 1986, plaintiff amended the complaint to name Theodore Laszlo, the doctor who had intubated decedent, and his colleague, Robert Butler, as defendants. The only other defendant remaining in the case at that time was Eastmoreland General Hospital.

Laszlo was served with process on March 21, 1986. He moved to dismiss on the ground that the pleading showed that the action had not been commenced within the time allowed by statute. ORCP 21A(9). The trial court granted the motion and entered judgment in favor of Laszlo pursuant to ORCP 67B. Plaintiff appealed. The Court of Appeals affirmed. Eldridge v. Eastmoreland General Hospital, 88 Or. App. 547, 746 P.2d 735 (1987). That court, with one judge dissenting, held that the limitation period in a wrongful death action commenced when the plaintiff discovered or should have discovered the harm was caused by defendant. However, the court further held that, in light of the fact that the complaint showed on its face that it had not been commenced against Laszlo until after the applicable statute of limitations had run, plaintiff had not alleged sufficient facts to excuse her failure to file her complaint timely. We hold that, no matter what plaintiff knew or should have known, the statute of limitations expired three years after the injury that caused decedent's death. The judgment of the circuit court and the decision of the Court of Appeals are affirmed.

Only plaintiff's complaint against Laszlo is before us.

Plaintiff argues that we should apply the so-called "discovery rule," which holds that a cause of action does not accrue until the plaintiff knows or should know that a tort was committed and that the defendant committed it. See, e.g., Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969). Were we to do so, plaintiff argues, she would be able to show by evidence that she did not discover the actual cause of decedent's death until less than three years prior to her joining Laszlo as a defendant. Laszlo argues that the discovery rule does not apply to wrongful death actions.

The discovery rule arose under a different statutory scheme from that involved here. ORS 12.010 provides:

"Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute."

In both Frohs v. Greene, supra; and Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), this court held that the discovery rule applies to medical malpractice cases in which the limitations period was set by ORS chapter 12.

Frohs and Berry do not help plaintiff because the present case does not involve a limitations period established by ORS chapter 12. Plaintiff's complaint is for wrongful death, and ORS 30.020 sets the limitations period for wrongful death cases. ORS 12.010 does not apply.

The pertinent statute, ORS 30.020 (1), provides:

"(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the occurrence of the injury causing the death of the decedent."

(Emphasis added.) The phrase "after the occurrence of the injury causing the death of the decedent" in ORS 30.020 (1) is far less susceptible to judicial interpretation than the phrase "after the cause of action shall have accrued" in ORS 12.010. An injury causing death may occur earlier but, by definition, can occur no later than the death itself. Decedent died on September 7, 1981. Laszlo was not impleaded until February 28, 1986, more than three years after the injury that caused decedent's death. The action against Laszlo was not timely commenced.

The complaint contains a single claim for wrongful death. Plaintiff does not argue that it is a complaint for decedent's injuries which survived her death pursuant to ORS 30.075.

The legislative history of the provision confirms that the legislature intended that the limitations period start at the time of injury, not at some later time. The phrase "after the occurrence of the injury causing the death" was first adopted in 1967. Prior to 1967, the statute had provided for a limitations period of two years from the death of the decedent. That provision is traceable to section 367 of the Deady Code. The 1967 revision occurred when the legislature removed a dollar ceiling on wrongful death recovery. Senator Cook, at a Senate Judiciary Committee hearing on May 15, 1967, noted that a person could die one day short of the expiration of the three year period and that the right to an action would be lost the next day. Representative Carson, a sponsor of the bill who testified at the Senate committee hearing, agreed that such a result was arbitrary, but stated that the House Judiciary Committee was of the opinion that a date certain was needed and that three years was a reasonable choice.

It is true that this court has held that the discovery rule is applicable to another part of ORS ch 30, viz., the Tort Claims Act, ORS 30.260 to 30.300. ORS 30.275 (8) provides:

"(8) Except as provided in ORS 12.120 and 12.135, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employe or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury."

In Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980), and again in Adams v. Oregon State Police, 289 Or. 233, 611 P.2d 1153 (1980), this court applied the discovery rule to Tort Claims Act cases because, as we explained in Adams,

"[w]e [find] no reason to construe the Tort Claims Act narrowly and therefore [apply] the body of law previously developed by this court in US Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976) and Berry v. Branner, [supra] * * *."

289 Or at 238. Adams and Dowers Farms thus were cases of statutory interpretation in which this court found no reason in statutory language to defeat the function and purpose of the discovery rule.

It may be argued that the phrase "within two years after the alleged loss or injury" in ORS 30.275 (8) is similar to the phrase "after the injury causing the death" in ORS 30.020 (1) and, therefore, the discovery rule should apply to cases under the second phrase if the rule applies to cases under the first. These two phrases, however, cannot be compared so readily. Here, unlike in Adams and Dowers Farms, the legislative history makes it clear that the legislature had an intent contrary to the discovery rule when it enacted ORS 30.020 (1).

Plaintiff also argues that the limitations period should await the appointment of the personal representative, relying on Banda v. Danner, 87 Or. App. 69, 741 P.2d 514 (1987) aff'd by an equally divided court, 307 Or. 302 (1988). In the context of this statute, the appointment of the personal representative is not relevant to the determination whether the limitations period established by ORS 30.020 has expired. The only fact to be determined is whether the action was commenced against this defendant within three years of the injury causing decedent's death. Here, it was not.

The judgment of the circuit court is affirmed. The decision of the Court of Appeals is affirmed, but on different grounds than those stated by the Court of Appeals.


Summaries of

Eldridge v. Eastmoreland General Hospital

Oregon Supreme Court
Mar 7, 1989
307 Or. 500 (Or. 1989)

holding "no matter what plaintiff knew or should have known," statute of limitations on plaintiff's wrongful-death action expired three years after decedent's death

Summary of this case from Lafage v. Jani

In Eldridge, which was not a product liability case, the issue was whether a discovery rule applied to wrongful death actions.

Summary of this case from Kambury v. DaimlerChrysler Corp.

In Eldridge v. Eastmoreland General Hospital, supra, 307 Or at 505, 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.

Summary of this case from Stephens v. Bohlman

In Eldridge v. Eastmoreland General Hospital, supra, 307 Or at 505, 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 of the discovery rule."

Summary of this case from Stephens v. Bohlman

In Eldridge, a case involving wrongful death due to medical malpractice and negligence, this court held that the statute of limitations for actions for wrongful death, ORS 30.020 (1), rather than the statutes of limitations for either negligence or medical malpractice, governed such proceedings.

Summary of this case from Western Helicopter Services v. Rogerson Aircraft
Case details for

Eldridge v. Eastmoreland General Hospital

Case Details

Full title:ELDRIDGE, Petitioner on Review, v. EASTMORELAND GENERAL HOSPITAL et al…

Court:Oregon Supreme Court

Date published: Mar 7, 1989

Citations

307 Or. 500 (Or. 1989)
769 P.2d 775

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