 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Giulietti v. Oncology Associates of Oregon12/5/2001
Argued and submitted July 11, 2001.
EDMONDS, P. J.
Reversed and remanded.
Plaintiff appeals after the trial court granted defendants' ORCP 21 A motion and dismissed his medical malpractice action on the ground that it was not brought within the statute of limitations. Plaintiff contends that defendants' failure to comply with UTCR 5.010 1 , requiring a moving party to confer with the opposing party before filing a motion, should have resulted in the denial of defendants' motion. Alternatively, he contends that the action was commenced within the statutory limitation period for this action under ORS 30.075. We reverse and remand.
Plaintiff James Giulietti is the personal representative of the decedent, Joyce Guilietti (Joyce). Joyce received a chemotherapy treatment from defendants on November 5, 1997. Complications arose from the treatment, and two days later Joyce complained of pain and discomfort in her hand. On November 17, twelve days after the treatment, another doctor diagnosed her condition as a reaction to the administration of the chemotherapy--in essence, a chemotherapy burn. Joyce was treated for the burn and incurred medical bills and other costs. She died on April 27, 1999, from the cancer that had necessitated the chemotherapy.
As personal representative of Joyce's estate, plaintiff filed this action on May 1, 2000, approximately two-and-a-half years after defendants' treatment and more than one year after Joyce's death. Defendants filed an ORCP 21 A motion to dismiss, arguing that the action was filed after the two-year time limitation provided by ORS 12.110(4). Defendants did not confer with plaintiff's counsel, and no certificate of compliance was filed. UTCR 5.010(1) Plaintiff opposed the motion, relying on defendants' failure under UTCR 5.010(1) and on the three-year limitation provided by ORS 30.075. The court granted the motion, and plaintiff appeals.
On appeal, plaintiff argues that UTCR 5.010(1) required the court to deny the ORCP 21 A motion because of the failure to confer. Defendants respond, however, that compliance with the rule would have been futile and that, even if the motion should have been denied, any error was harmless because defendants simply would have conferred with plaintiff and then filed the same motion again. On appeal, plaintiff agrees that a remand on the UTCR issue is not necessary unless plaintiff's action is determined to be not timely. We accept that concession and turn to the merits of the ruling on the ORCP 21 A motion.
Four statutes are relevant to our inquiry, each of which purports to affect the timeliness of plaintiff's action. ORS 12.110 establishes a period of limitation for actions for professional malpractice generally. It provides in part:
"(4) 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. However, notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered."
ORS 12.010 provides:
"Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action sh
Page 1 2 3 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|