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Walters v. Hobbs8/22/2001
originally intended a vaginal delivery, that complaint did not state or imply either that a cesarean section delivery was unnecessary, was required due to the alleged negligent acts by Hobbs, or was the cause of any of the damages claimed. Similarly, although the original complaint alleged that Sherri had undergone a stress test and fetal monitoring before Cheyenne's birth, it did not suggest that such tests were unnecessary, were negligently performed, or were the cause of any of the damages claimed. In short, while Hobbs could reasonably ascertain from the original complaint that plaintiffs were alleging that Cheyenne should have been delivered at a different time and that she suffered physical harm as a result, there was nothing in that complaint from which Hobbs should have inferred that Cheyenne should have been delivered by a different method and that Sherri suffered physical harm as a result. Moreover, as noted, the original complaint contained no suggestion that the fetal monitoring or stress test caused harm to Sherri.
That contrast between the original and amended pleadings starkly distinguishes this case from Welch. There, both the original and amended complaints alleged misrepresentations by the same defendant that resulted in interference with the same contract, resulting in the same damages, although the amended complaint alleged a misrepresentation to an additional party that was not alleged in the earlier pleading. Welch, 296 Or at 220, 222. In short, the added allegation in Welch was that the defendant had done something tortious concerning the same predicate facts, resulting in the same damages to the same party, as was specified in the original pleading. Thus, in Welch, the later-alleged misrepresentation "unite with the originally pleaded misrepresentation * * * to cause the single injury alleged in the original complaint." Id. at 222 (emphasis added).
Here, by contrast, the amended complaint not only alleges different tortious acts (fetal monitoring, stress tests, unnecessary cesarean delivery), but also alleges that (1) those newly pleaded acts resulted in physical harm to a plaintiff who was not alleged in the original complaint to have been physically harmed; and (2) the plaintiff was damaged in a different manner than that alleged in the original complaint. The specifications of negligence in the different complaints here did not "unite" to cause a single injury , as was the case in Welch.
Given those substantial disparities in the pleadings, this case is more analogous to Evans than to Welch. In Evans, as here, the original and amended complaints both related to events at a hospital on a specific occasion, but new damages were sought by new parties (or by parties individually rather than in a representative capacity) based on new factual allegations concerning what had occurred. 83 Or App at 32. We held that there was an insufficient nexus to put the defendant on notice that the later asserted claim might arise out of the occurrence or transaction originally pleaded. Id. We acknowledge that one of the circumstances we pointed to in Evans was that the original complaint did not even allege that the plaintiffs were physically present, where here, Sherri necessarily was present during the prenatal care and delivery of her child. Nevertheless, nothing in the original complaint here suggested that any negligent conduct caused any type of harm to Sherri other than the alleged emotional harm from witnessing the birth.
In sum, we conclude that given the material differences between the allegations of the original and amended complaints as to: (1) the nature of Hobbs's alleged tortious conduct, (2) the source of causation of injury to Sherri, and (3) the
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