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Laird v. Stroot6/12/2003
On remand from the Oregon Supreme Court. Laird v. Stroot, 335 Or 217, 65 P3d 1108 2003. Former decision Laird v. Stroot, 165 Or App 314, 995 P2d 597 (2000).
Submitted on remand April 2, 2003.
Affirmed.
Plaintiff sued defendants, two podiatrists, for malpractice in their treatment of his hammertoe condition. The trial court granted summary judgment to defendants on statute of limitations grounds, and we originally affirmed without opinion. Laird v. Stroot, 165 Or App 314, 995 P2d 597 (2000). The Supreme Court thereafter allowed plaintiff's petition for review, vacated our decision, and remanded the case to us for reconsideration in light of Greene v. Legacy Emanuel Hospital, 335 Or 115, 60 Or 535 (2002). Laird v. Stroot, 335 Or 217, 65 P3d 1108 (2003). We again affirm.
We state the facts in the record most favorably to plaintiff, the non-moving party. ORCP 47 C. On February 10, 1994, defendants operated on plaintiff's right foot to correct a hammertoe condition. The operation did not resolve that condition; instead, plaintiff's foot failed to heal properly and showed signs of infection. Defendants nevertheless told plaintiff that what he was experiencing was part of the normal healing process. Plaintiff is not a physician and does not know what is or is not part of the treatment of a hammertoe. Defendants eventually told him that further surgery was necessary. They operated again on May 5, 1994; during that operation, they found a piece of gauze that they had left in his foot during the first operation. Immediately after the second operation, they told plaintiff about the presence of the gauze in his foot, but they did not inform him that they had been negligent in leaving it there.
The second operation failed to resolve plaintiff's problems, and defendants performed a third operation on September 22, 1994, that also failed to resolve plaintiff's condition. By then, plaintiff had become suspicious that his treatment was not proceeding normally. In July 1995, he made an appointment with a different podiatrist in order to get a second opinion. However, before he could keep the appointment, he was arrested on criminal charges, which ultimately resulted in his conviction and imprisonment. While he was incarcerated on those charges, plaintiff learned additional facts that led him to conclude that defendants' treatment had been negligent. He ultimately filed the complaint in this case on November 26, 1997. Defendants moved for summary judgment on the ground that plaintiff had not commenced the action within two years after he discovered or should have discovered his injury. ORS 12.110(4). The trial court granted the motion, and plaintiff appeals.
ORS 12.110(4) provides, in pertinent part:
"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."
In addition, at the time of plaintiff's arrest and subsequent incarceration, former ORS 12.160(3) could operate to toll the running of limitations periods, including that of ORS 12.110(4). The statute provided for the tolling of a statute of limitations if, "at the time the cause of action accrues," the plaintiff was " mprisoned on a criminal charge, or in execution under the sentence of a court for a term less than the person's natural life[.]" In 1997, the legislature repealed former ORS 12.160(3). However, the repeal gave persons who could have brought an action on the day before the effective date of the repeal one year from that date to file t
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