M ORE L AW
LEXAPEDIA
Salus Populi Suprema Lex Esto

Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Date: 03-15-2017

Case Style: Ray F. Kastle v. Salem Hospital

Case Number: A159922

Judge: Devore

Court: Oregon Court of Appeals

Plaintiff's Attorney: Kathryn M. Pratt and Brian R. Whitehead

Defendant's Attorney: Jay W. Beattie and Jeffrey S. Young

Description: 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 P3d 52 (2008). In this case, that is the third amended
1 In relevant part, ORCP 21 A(9) provides that a defendant may move to
dismiss on the ground “that the pleading shows that the action has not been
commenced within the time limited by statute.”
2 In relevant part, ORS 12.110(4) provides:
“An action to recover damages for injuries to the person arising from any
medical, surgical or dental treatment, omission or operation shall be commenced
within two years from the date when the injury is first discovered or
in the exercise of reasonable care should have been discovered.”
3 See ORS 12.160(3) (tolling the commencement of time limitations for a disabling
mental condition that prevents a person from comprehending rights); see
also ORS 12.160(4) (tolling time for five years or one year after disabling mental
condition ends, whichever occurs first).
Cite as 284 Or App 342 (2017) 345
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.
4 Defendants refer to documents with facts outside the complaint. Our
account, however, omits such materials because they are not properly considered
when reviewing a motion to dismiss under ORCP 21 A(9). See Roberts v. Drew,
105 Or App 251, 255, 804 P2d 503 (1991) (“Although affidavits and other materials
outside the complaint may be submitted in connection with motions to dismiss
made on the grounds set forth in ORCP 21 A(1) through (7), this was a motion
under ORCP 21 A(9), and our inquiry is limited to the face of the complaint.”).
346 Kastle v. Salem Hospital
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
5 The third amended complaint also alleged that Johnson, an original defendant,
was an employee of SPA, for whom SPA should also be vicariously liable.
After that complaint, plaintiff settled with original defendants Salem Hospital,
Buchanan, and Kruse. The court entered a limited judgment approving settlement
and granted plaintiff’s motion to abate the case against remaining defendant
Johnson, pending this appeal involving defendants Ismail and SPA.
Cite as 284 Or App 342 (2017) 347
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 Ismail 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 P2d 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. 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
6 Defendants rely on a statement in plaintiff’s response to defendants’ motion
that, on April 30, 2012, plaintiff obtained a professional medical review concerning
the care of the earlier, original defendants. From that statement, defendants
infer that plaintiff must have known his injury and its cause and should have
uncovered the role of Ismail and SPA.
348 Kastle v. Salem Hospital
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 P2d 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, a
defendant may offer evidence outside the complaint to show
that there is no genuine dispute of material fact about when
the plaintiff reasonably should have discovered a claim and
when the limitations period lapsed. ORCP 47 C.
This understanding of ORCP 21 A(9) is illustrated
by a case decided under the rule’s precursor, ORS 16.260(7),
Cite as 284 Or App 342 (2017) 349
which likewise made the complaint the sole frame of reference.
In Hewitt v. Thomas, 210 Or 273, 274 n 2, 310 P2d 313
(1957), an owner filed an action in ejectment to recover possession
of property stating properly all the elements of the
claim.7 The defendants had filed no demurrer, but, at trial,
they objected all the same that “it must appear from the
complaint that it is not barred by the statute of limitations
governing that particular case” and that the plaintiff had
failed to plead that he had been in title within 10 years. Id.
at 274-75. In effect, the argument meant that the plaintiff
bore a burden of pleading that the claim was timely and that
silence on the topic left a complaint insufficient. Ruling the
complaint insufficient, the trial court dismissed the action.
Id. at 274. The Supreme Court reversed. It held that the
defendants’ argument was “incorrect” because “the statute
of limitations is an affirmative defense that must be pleaded
in the answer if the defect does not appear on the face of
the complaint.” Id. at 276. The cases upon which the defendants
had relied “were ones where it appeared on the face of
the complaint that the statute had run, and it was therefore
incumbent on [the] plaintiff to plead grounds for tolling the
statute.” Id. In Hewett, however, nothing on the face of the
complaint showed that the statute had run. Although the
complaint had pleaded nothing to show the complaint was
within the statute of limitations, the court held “that the
complaint was sufficient.” Id. at 276-77.
We have followed the same principle in applying
ORCP 21 A(9). In Munsey, plaintiff filed an action in 1985
alleging, among other claims, that a union and its officers
had breached its duty of fair representation “[f]rom time to
time since 1977” and that the breach was “continuing.” 85
Or App at 398. The period of limitation for the claim was
only six months. Id.; see 29 USC § 160 (claims of unfair labor
practices). The defendants moved to dismiss based upon the
statute of limitations, arguing that the plaintiff’s allegation
of continuing conduct was conclusory and that the plaintiff
7 In that case, former ORS 16.260(7) provided the same framework for our
decision as does today’s ORCP 21 A(9). In relevant part, that statute provided
that a “defendant may demur to the complaint * * * when it appears upon the face
thereof: * * * [t]hat the action has not been commenced within the time limited
by statute.” Former ORS 16.260 (1955), repealed by Or Laws 1979, ch 284, § 199
(emphasis added).
350 Kastle v. Salem Hospital
had alleged no specific event within six months. Munsey,
85 Or App at 398. The trial court dismissed the action. On
appeal, we stressed that it sufficed “if the complaint does
not reveal on its face that the action is not timely. ORCP 21
A(9).” Id. at 399 (emphasis in original). Because the allegation
did not show that no “violative events” occurred within
six months preceding the action, it was sufficient to withstand
a motion to dismiss. Id.8
We followed the same principle once again in
Bodunov v. Kutsev, 214 Or App 356, 164 P3d 1212 (2007). In
that case, the plaintiffs bought a farm, mobile homes, and a
migrant camp from the defendants in April 2000, believing
the defendants’ representation that the mobile homes and
camp were “legal.” Id. at 358. In August 2003, the plaintiffs
learned from the county that the structures violated a
zoning ordinance. Id. at 358-59. The plaintiffs filed a fraud
claim in July 2004 and prevailed. Id. On appeal, the defendants
argued, among other things, that the trial court had
erred in denying their motion to dismiss under ORCP 21 A(9)
because, according to the defendants, the face of the complaint
demonstrated that plaintiff brought the action more
than two years after learning of the misrepresentation. Id.
at 359. We reviewed “to determine whether the face of the
complaint demonstrate[d] that the action was untimely.” Id.
at 358. We determined that the complaint did not show that
the plaintiffs were aware of their claim when the false representation
was made. Id. at 359. We also rejected the suggestion
that the zoning violation was “apparent and inherently
8 For a contrary proposition, defendants quote Eldridge v. Eastmoreland
General Hospital, 88 Or App 547, 550, 746 P2d 735 (1987), aff’d on other grounds,
307 Or 500, 769 P2d 775 (1989): “When a complaint shows on its face that the
period for bringing an action has run, the plaintiff, to avoid the bar, must plead
facts sufficient to show that the delay is excused.” Assuming the truth of the premise
(i.e., that the face of the complaint shows the statute has run), the statement is
unremarkable. In Eldridge, the majority also stated, “Because the demurrer was
sustained, the complaint must be construed most strongly against the pleader.”
Id. That statement is quite unlike our current standard, construing the complaint
in plaintiff’s favor. Kelly, 224 Or App at 33. Judge Rossman dissented, contending
that the complaint need only allege facts sufficient to raise a question of fact as to
whether the plaintiff should have reasonably discovered her claim. Eldridge, 88 Or
App at 551 (Rossman, J., dissenting). In that regard, his dissent presaged the
recent decision of the Supreme Court in Doe v. Lake Oswego School District, 353
Or 321, 332-33, 297 P3d 1287 (2013); see 284 Or App at 352-53 (to the same
effect).
Cite as 284 Or App 342 (2017) 351
discoverable at the time of the property sale” because, on
the face of the complaint, nothing showed that the plaintiffs
were put on notice of the need to make an inquiry. Id. at
361.9
We adhere to the analysis required by ORCP 21
A(9) in matters of professional liability where, at times, discovery
of a claim may even be more uncertain. In Guirma v.
O’Brien, 259 Or App 778, 316 P3d 318 (2013), a grandmother
retained the defendant, an attorney, to represent her in an
effort to adopt her grandchild. The attorney proceeded with
the adoption premised upon service of the adoption petition
on the birth mother by publication, rather than by personal
service. Id. at 781. Although the grandmother told the attorney
that the birth mother was having regular visits with the
child at an agency office and, later, that the birth mother
was arrested and in detention, the attorney did not advise
the court or amend the pleadings before the adoption was
granted. Id. at 781-82. In June 2007, the birth mother moved
to set aside the adoption based on the irregularities of service
and the proceedings. The trial court denied the motion,
but the Supreme Court reversed. Id. at 782 (citing J. G. v.
N. D. G., 348 Or 525, 236 P3d 709 (2010)). Thereafter, the
parties settled, setting aside the adoption and allowing the
grandmother to retain custody of the child. Id. More than
three years after the birth mother had moved to set aside
the adoption, the grandmother brought a claim for legal malpractice
against her attorney for the manner in which the
9 We recognize that some early fraud cases declare facts sufficient to have
put plaintiffs on notice to inquire about the falsity of the representations, and,
in turn, those facts obligated plaintiffs to plead so as to avoid an assumption
that plaintiffs reasonably should have discovered their claims near the time of a
transaction or representation—a time outside the statute of limitations. See, e.g.,
Heard v. Coffey, 218 Or 275, 280, 344 P2d 751 (1959) (although the plaintiff did
not actually discover the falsity of the agents’ representations about her policy
until her disability claim, the court noted that she possessed her policy from
the outset); Huycke v. Latourette, 215 Or 173, 332 P2d 606 (1958) (although the
plaintiffs alleged that they did not discover dry rot in their home until well after
its purchase, the court found no excuse for their delay in bringing the action).
Such cases recite that “a complaint filed after the period provided by statute for
the bringing of the action must negative lack of diligence in the discovery of the
fraud.” Huycke, 215 Or at 177; see Heard, 218 at 281 (same). Because plaintiff’s
complaint, here, does not require that we reconcile prevailing case law with those
statements, we do not attempt the task. See Doe, 353 Or at 333; 284 Or App at
352; see also Bodunov, 214 Or App at 358-61 (concluding that the complaint did
not show that the plaintiffs should reasonably have discovered the claim earlier).
352 Kastle v. Salem Hospital
attorney had handled the matter. Id. at 783. The trial court
dismissed the complaint under ORCP 21 A(9) as untimely
under the statute of limitations. Id. at 784. The trial court
accepted the defendant’s argument that the grandmother
should have discovered her claim when the birth mother
moved to set aside the adoption. Id. Given that, the trial
court judged the circumstances to require the grandmother
to have pleaded more. The trial court observed, “Nothing in
the complaint alleges that plaintiff did not learn of [birth
mother’s] motion to set aside the adoption * * * within two
years of the date the complaint was filed.” Id. at 785 (internal
quotation marks omitted; emphasis added). We, however,
framed the issue differently. We recognized:
“At the outset, we note that, under [the] standard of
review, the question is not whether the facts alleged in [the]
plaintiff’s complaint established, as a matter of law, that
the complaint was timely filed. Rather, it is whether those
facts established, as a matter of law, that it was not timely
filed.
Id. at 785 (emphasis in original). We determined that nothing
in the complaint compelled the conclusion that the
grandmother immediately knew or should have known that
her lawyer’s advice or steps undertaken were faulty even
when challenged. Id. at 786-87. The debate about when the
grandmother should reasonably have discovered the claim
represented a fact question that could not be resolved as a
matter of law on a motion to dismiss under ORCP 21 A(9).
Id. at 787-88.10
More commonly, disputes about time limitations
under ORCP 21 A(9) are arguments about whether the
complaint shows that a plaintiff should have reasonably
10 We concede that, at points in Guirma and in other cases, we have slipped
into referring to whether the allegations established that the action was timely,
as opposed to not untimely. Id. at 780-81 (asking whether complaint affirmatively
alleges facts to permit a fact finding that the complaint was filed timely); see also
Sternberg v. Lechman-Su, 271 Or App 401, 407, 350 P3d 593 (2015) (to the same
effect). That slippage, while perhaps imprecise, is not indicative of any uncertainty
about the correct legal test but merely a reflection of issues as framed
by the circumstances. In most pleading cases involving the discovery rule, the
practical reality is that the plaintiff has affirmatively alleged facts relating to the
date of discovery and the only issue in dispute is what inferences reasonably can
be drawn from the plaintiff’s allegations with regard to timeliness.
Cite as 284 Or App 342 (2017) 353
discovered the claim at an earlier date, given the allegations
of wrongdoing and allegations of delayed discovery. In Doe
v. Lake Oswego School District, 353 Or 321, 297 P3d 1287
(2013), the plaintiffs brought an action for sexual battery
against a school district as the employer of a fifth-grade
teacher. They alleged that, between 1968 and 1984, the
teacher touched them inappropriately and that they did not
comprehend the abusive nature of the contacts until variously
between November 2006 and March 2008. Id. at 323-
24. They filed their action in February 2008. Id. at 324. The
defendant argued that, from the face of the complaint, the
latest contact had been in 1984 and that the claims were
time-barred. Id. at 326. The trial court concluded that any
fifth-grader should have known that sexual touching was
wrong and therefore the plaintiffs would be deemed to have
discovered the claims at times outside the statute of limitations.
Id. The Supreme Court, however, concluded that
whether the plaintiffs, as fifth-graders, should have recognized
the offensive or harmful nature of the contact was a
fact question that could not be resolved as a matter of law
under ORCP 21 A(9). Id. at 334-35. Consequently, dismissal
under ORCP 21 A(9) was error, and the judgment was
reversed. Id. at 337.
In light of these cases, plaintiff is correct that it
is his responsibility to state facts sufficient to constitute a
claim, ORCP 18 A, that it is defendants’ responsibility to
plead or assert an affirmative defense of limitations, ORCP
19 B or ORCP 21 A(9), and that, ordinarily when stating a
claim, his “complaint does not have to show that the action
is timely.” Munsey, 85 Or App at 399 (emphasis in original);
see also Hewitt, 210 Or at 275-76. To resist a motion to dismiss,
it is enough if his complaint does not show itself to
be untimely. Id. When the question is framed properly, we
agree with plaintiff that nothing in the operative complaint
shows that plaintiff discovered or reasonably should have
discovered Ismail’s and SPA’s role in his injury more than
two years before he amended the complaint to add them as
defendants. There are several reasons.
First, the allegations do not establish when plaintiff
discovered, or should have discovered, that he suffered CPM,
354 Kastle v. Salem Hospital
the cause of that harm, or that negligence was involved.
Although the complaint provides the dates when plaintiff’s
blood was tested and when he received serum sodium infusions,
the complaint does not indicate that the harm necessarily
occurred or its cause was reasonably known, immediately
on the dates of treatment. As the Supreme Court has
observed, “A reasonable person that experiences symptoms
that are incidental to a particular medical procedure may
not be aware that he or she has been a victim of tortious conduct.”
Gaston, 318 Or at 256-57; Frohs v. Greene, 253 Or 1,
7, 452 P2d 564 (1969) (adverse effects would not necessarily
put the plaintiff on notice of tortious conduct by the defendant).
In holding that the discovery rule applied to medical
malpractice actions, the court explained:
“We do not believe the legislature intended to limit patients
asserting malpractice claims, who by the very nature of the
treatment had no way of immediately ascertaining their
injury, to the same overall period of time that is allowed for
bringing other tort claims that are normally immediately
ascertainable upon commission of the wrong. The protection
of the medical profession from stale claims does not
require such a harsh rule.”
Berry v. Branner, 245 Or 307, 312, 421 P2d 996 (1966). Those
observations are no less true here. The complaint does not
show when plaintiff reasonably discovered the first elements
of a claim.
Second, the complaint does not allege facts regarding
when plaintiff discovered, or should have discovered,
Ismail’s and SPA’s role in causing his harm. The complaint
only alleges that Dr. Ismail’s negligent actions occurred on
August 19 and 20, 2011. The complaint does not allege that
plaintiff discovered defendants’ causal role at that time or at
any other time more than two years before filing the third
amended complaint. See T. R. v. Boy Scouts of America, 344
Or 282, 293, 181 P3d 758 (2008) (“Depending on the facts
of the particular case, a reasonable person who knows the
identity of the tortfeasor who was the immediate physical
cause of his or her injury may or may not be alerted to the
possible existence of other tortfeasors.”).
Cite as 284 Or App 342 (2017) 355
Third, the complaint does not show, as defendants
argue, that SPA should sooner have been discovered as a
defendant, inasmuch as Johnson was a defendant in the
original complaint. We cannot accept defendants’ argument
that the relationship between SPA and Johnson was “inherently
discoverable” based on a “casual internet search” of
the SPA website. Nor can we accept that the relationship
was “inherently discoverable” because plaintiff’s early
return of service on Johnson indicated that he had been
served at the SPA offices. True or not, those things do not
follow from facts alleged in the complaint. We reiterate that
a court’s review of a motion to dismiss under ORCP 21 A(9)
is restricted to the face of the complaint. This was not a
motion for summary judgment. Therefore, we cannot consider
whether plaintiff should have had earlier knowledge
of SPA’s relationship to Johnson; and we do not consider
what can be gleaned from extraneous sources about him.
Bodunov, 214 Or App at 361 (evaluating the “face of the
complaint” and rejecting argument that facts were “inherently
discoverable”). The complaint indicates that plaintiff’s
treatment was provided by multiple defendants and that it
occurred within Salem Hospital, not within SPA’s medical
offices. See T. R., 344 Or at 293 (identity of defendant not
reasonably known).
This case is distinguishable from Gehrke v. CrafCo,
Inc., 143 Or App 517, 522-23, 923 P2d 1333 (1996), rev den,
324 Or 560 (1997), on which defendants rely. In that case,
we held that the identity of the owner of the store where
the plaintiff slipped and fell was “inherently discoverable.”
Id. at 524. We explained later that “the plaintiff, at the
time of her injury, knew the identity of the tortfeasor—the
store—and simply did not exercise reasonable diligence in
nailing down accurately the identity of the store’s owner.”
Cole v. Sunnyside Marketplace, LLC, 212 Or App 509, 521,
160 P3d 1 (2007), rev den, 344 Or 558 (2008). Here, identifying
the tortfeasor was not as obvious as knowing the location
where a fall occurred. As this complaint demonstrates,
medical care may involve multiple care providers at various
locations; they may come and go as shifts change, medical
conditions arise, and circumstances require. The relationships
among medical providers are not readily apparent to
356 Kastle v. Salem Hospital
the patient. That which might be “inherently discoverable”
in another case does not serve to prevent the application of
the discovery rule in this case.
In sum, the complaint does not establish, on its face,
that plaintiff discovered or reasonably should have discovered
his injury, its tortious cause, and those persons who
may be responsible, more than two years before commencing
this action. Because the complaint does not show that the
statute of limitations had run, plaintiff was not required to
have pleaded delayed discovery to avoid an assumption that
it had run. We conclude that the trial court erred in granting
defendants’ motion to dismiss. Accordingly, we reverse
and remand for further proceedings.

Outcome: Reversed and remanded.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2018 MoreLaw, Inc. - All rights reserved.