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Laird v. Stroot6/12/2003
arly unrelated to the procedure that the defendant had performed that, as a matter of law, a reasonable person would have believed that the cause of the adverse effects was tortious conduct. Id. at 258.
The facts in Gaston are an example of a situation in which a plaintiff's knowledge of undesired results does not necessarily establish actual or imputed discovery of an injury for purposes of ORS 12.110(4). Greene, 335 Or at 125. The Greene court contrasted the facts in Gaston with the facts in Berry v. Branner, 245 Or 307, 421 P2d 996 (1966). In Berry, the plaintiff discovered that the defendant had left a needle in her body during surgery. That discovery began the running of the limitations period. Greene, 335 Or at 126. There was no suggestion in Berry that the defendant had made any representations after the needle was found regarding its presence in the plaintiff's body.
In this case, plaintiff knew on May 5, 1994, that defendants had left gauze in his foot during the first operation. That knowledge constitutes knowledge of a distinct injury, much like the knowledge of the perforated uterus and colon in Greene and of the needle in Berry. In the absence of some reason for plaintiff to believe that leaving gauze in his foot was a part of the course of treatment, plaintiff's knowledge of that fact constituted knowledge that he had suffered harm as a consequence of defendants' tortious conduct and triggered the running of the statute. It follows that his cause of action accrued as a matter of law on May 4, 1994, before his arrest.
Plaintiff's primary response to the uncontroverted evidence of his knowledge of the presence of the gauze in his foot on May 5, 1994, is his assertion that defendants told him that leaving the gauze in his foot was a part of the normal course and treatment for his condition. He argues that those statements, like the physician's statements in Gaston, constitute additional circumstances that create an issue of fact about when he should have discovered defendants' tortious conduct. The flaw in his argument is that there is no evidence in the summary judgment evidentiary record to support his assertion that defendants made the alleged statements. See ORCP 47 C (summary judgment is to be based on "pleadings, depositions, affidavits and admissions on file"); 47 D (affidavits must be made on personal knowledge and set forth admissible evidence). Rather, the only references to them came in his arguments to the trial court, not in the evidence that he submitted.
Plaintiff submitted an affidavit in contravention of defendants' motion for summary judgment. In the initial part of the affidavit, plaintiff avers, in relevant part,
"3. The defendants constantly and continually reassured me that (a) the pain and swelling were all a natural part of the healing process of the hammertoe procedure and (b) the necessity for further corrective surgery in addition to the initial surgery of February 10th 1994.
"4. After removal of the gauze from my foot on May 5, 1994, the defendants did tell me they removed the gauze they left in my foot. They did not tell me that they negligently left it in there to begin with, or that it was unintentional or that this was not part of the hammertoe procedure, or not one of the additional operations."
No other part of his affidavit refers to any statements made to him by defendants. Rather, the remaining gist of his affidavit is that they left the gauze in his foot intentionally to justify the need for additional surgeries. Consequently, there is no evidence in the summary judgment evidentiary record of any attempts by defendants to conceal their tortious conduct.
In summary,
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