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Walters v. Hobbs8/22/2001
ant had inflicted injuries on them, whereas the original complaints had alleged only injury to the decedent or the decedent's estate. Id. Finally, we noted:
"Among the principal allegations supporting those claims [in the amended complaint] were that plaintiffs saw the decedent's sufferings and learned that, by defendant's deliberate choice, no life support measures had been or would be applied. No such allegations were made in the original and first amended complaints. Indeed, those complaints did not even allege that plaintiffs were present at the hospital during the events or that they were ever aware that defendants had elected not to implement life support procedures." Id. at 32-33.
Consequently, we held that the earlier complaints "could not have enabled the hospital to anticipate an eventual need to defend against the claims that those plaintiffs suffered any compensable emotional distress." Id. at 33.
In subsequent cases, we have followed our formulation from Evans for determining whether amended complaints related back to earlier complaints. For example, in Hendgen v. Forest Grove Community Hospital, 109 Or App 177, 179, 818 P2d 966 (1991), the plaintiff initially alleged that a doctor and hospital were negligent in failing to diagnose and treat an intestinal condition. In her amended complaint, the plaintiff added a claim for intentional infliction of emotional distress, alleging for the first time that unnamed hospital employees "berated her, shoved her onto examining tables and forced her to assume positions that caused her extreme pain." Id. at 180. We held that the added claims did not relate back to the original complaint:
"The newly alleged conduct has no discernible connection to, and is of an altogether different nature than, that originally alleged. The original pleading claimed only that a named emergency room doctor had been negligent. The second amended complaint, however, contains allegations that plaintiff was subjected to the intentional infliction of emotional distress before and after [the doctor's] examination, at the hands of other hospital employees. She does not allege that [the doctor] was responsible for those other employees or that he was aware of their actions. We hold that the facts alleged in the original complaint were insufficient to allow hospital to discern that it might also be subject to an emotional distress claim as a result of other hospital employees' conduct[.]" Id. at 181.
As all of the cases on this question acknowledge, the essential inquiry under ORCP 23 C is one of notice. See, e.g., Welch, 296 Or at 221. An amended complaint filed after the limitations period may relate back "if the defendant would have been able to discern from the earlier pleading a potential for the additional basis of liability." Jeffries v. Mills, 165 Or App 103, 119, 995 P2d 1180 (2000), citing Evans, 83 Or App at 32. Thus, the question here reduces to whether Hobbs would have been able to discern from plaintiffs' original pleading the potential for liability for physical harm to Sherri caused by acts that were different from those originally alleged to have caused physical harm to Cheyenne and emotional harm to Sherri.
We return to, and summarize the key differences in, the factual allegations in the complaints. See ___ Or App at ___ (slip op at 2-4, 6-7) (setting out pleadings). The original complaint alleged that Hobbs negligently failed to monitor Cheyenne's growth when she was in utero and failed to prepare for a small-for-gestational-age baby despite knowledge that Sherri was taking a medication that could cause her baby to be small for its gestational age. More particularly, the complaint alleged that Hobbs:
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