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Williams v. Jett9/25/2002
Argued and submitted July 10, 2002.
Reversed and remanded.
Plaintiff appeals from a summary judgment dismissing her malpractice complaint against the defendant doctor on the ground that plaintiff's claim was time barred for failure to adequately serve defendant within the applicable limitations period. Plaintiff argues that the service here was adequate under ORCP 7 D 1 because it was reasonably calculated, under the totality of the circumstances, to apprise defendant of the action, and that the trial court erred in concluding that plaintiff had failed to timely serve defendant. We agree with plaintiff and, consequently, reverse and remand.
For purposes of our review, the material facts are as follows. Defendant is a medical doctor specializing in gynecology and gynecological surgery. At some point before June 1998, plaintiff consulted with defendant after plaintiff experienced chronic pelvic pain. On June 1, 1998, defendant performed exploratory surgery to determine the source of that pain. During that procedure, defendant removed plaintiff's right ovary. Later that day, plaintiff was discharged from the hospital, but returned after suffering persistent and increasing pain, nausea, and chills. On June 2, 1998, another doctor performed emergency surgery on plaintiff to repair a perforation in plaintiff's small intestine that had apparently occurred during the earlier surgery performed by defendant.
On May 31, 2000, plaintiff filed this medical malpractice action against defendant. Thereafter, on Friday June 2, 2000, Deschutes County Sheriff Greg Brown delivered the summons and complaint to defendant's office, leaving the papers with the person who, according to the sheriff, was "apparently in charge." The following Monday, June 5, the sheriff completed the return of service. The next day, June 6, plaintiff filed a return of service with the court. Also on June 6, defendant's attorney sent a letter to plaintiff's counsel acknowledging receipt of the complaint and asking that plaintiff not seek a default judgment without first notifying defendant's counsel. That letter stated:
"I will be representing Dr. Jett in this case.
"I have just received a copy of the complaint you have filed but do not yet have the doctor's chart. As soon as I have it, I will review it and then enter an appropriate appearance. In the meantime, pursuant to ORCP 69, please do not apply for a default without prior written notice to me.
"I look forward to working with you on this case."
Thereafter, plaintiff undertook no further actions to effect service on defendant. In particular, plaintiff did not send a follow-up mailing pursuant to ORCP 7 D(2)(c).
On August 30, 2000, defendant filed her answer to plaintiff's complaint, raising the affirmative defenses of insufficient service of process and failure to commence the action within the time limited by statute. ORCP 21 A(9). Defendant then moved for summary judgment on both the merits of plaintiff's action and on the ground that plaintiff's claim was time barred because plaintiff had not effected adequate service within the applicable limitations period. The trial court agreed with defendant's related insufficiency of service and statute of limitations arguments, and entered a judgment dismissing plaintiff's claims with prejudice.
On appeal, the principal issue is whether plaintiff's efforts to serve defendant constitute adequate service for purposes of ORCP 7. Baker v. Foy, 310 Or 221, 228-29, 797 P2d 349 (1990), frames the inquiry. Under Baker, the court must answer two questions. First, was the method of service one of the methods described in ORCP 7 D(2) and
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