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Walters v. Hobbs8/22/2001
n section that more likely than not would have been avoided by careful monitoring of the pregnancy and inducement of labor prior to the time fetal distress was present;
"F. By having to take nine months leave from her work to recuperate from the surgery and to care for the seriously ill infant Cheyenne L. Walters, thus losing seniority at her place of employment and as a direct consequence of this loss of seniority plaintiff was laid off from her job even though she had worked at the same place of employment for a twelve year period of time[.]"
Plaintiffs further alleged that Hobbs acted recklessly and with wanton disregard of the high probability that severe emotional distress would result by holding himself out to be a specialist in high-risk pregnancies, by failing to refer Sherri to a qualified specialist in high-risk pregnancy who had access to a facility equipped for the delivery of, and care for, small-for-gestational-age babies, by advising Sherri to leave the hospital and return for delivery on the following day despite serious questions as to the well-being of Sherri and the fetus, and by failing to transport Sherri to a facility equipped to provide proper care when it became apparent that fetal distress was present. Finally, the amended complaint alleged that Sherri was entitled to recover non-economic damages of $500,000.
Hobbs moved to strike the new allegations on the ground that they did not relate back to the original pleading under ORCP 23 C and that the amended complaint was not filed within the statute of limitations. The trial court denied Hobbs's motion.
The trial was held from January 15 through March 3, 1998. The operative complaint, by that time, was plaintiffs' third amended complaint which included a separate claim by Sherri for negligence based on allegations that were substantially the same as those in the amended complaint, which the court had ruled related back to the original complaint under ORCP 23. The jury returned verdicts in favor of plaintiffs, awarding Cheyenne $57,741 in economic damages and $655,000 in non-economic damages, and awarding Sherri $55,000 in economic damages and $500,000 in non-economic damages. The present appeal ensued.
On appeal, Hobbs raises eight assignments of error. Of those eight assignments, five--four challenging the admission or exclusion of evidence, and one challenging the denial of a motion to strike a paragraph from the complaint--pertain either to Cheyenne's claims alone or to both Cheyenne's and Sherri's claims. The remaining three assignments of error--one challenging the denial of Hobbs's motion to strike the new allegations of plaintiffs' amended complaint, and two challenging evidentiary rulings--pertain exclusively to Sherri's claims.
We reject, without further discussion, the five assignments of error that either exclusively or partially pertain to Cheyenne's claims. Accordingly, we affirm the judgment for Cheyenne. However, with regard to Sherri, we conclude that the trial court erred in denying Hobbs's motion to strike the new allegations from plaintiffs' amended complaint. Because those allegations provided the basis of Sherri's ultimate recovery, the judgment for Sherri must be reversed. That disposition obviates any need to consider the remaining two evidentiary assignments of error that pertain only to the judgment in favor of Sherri.
Plaintiff's original complaint was filed February 10, 1995, within two years of the termination of the professional relationship on February 15, 1993. The amended complaint was filed in August 1995. Hobbs argues--and Sherri does not dispute--that, unless the amended complaint related back to the original complaint, t
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