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Brownstein v. Pearson3/8/2000
uestion thus reduces to whether he should have known before then that his damages were caused by his lawyer's negligence. See Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993) (defining when a claim for legal malpractice accrues); Hoeck v. Schwabe, Williamson & Wyatt, 149 Or App 607, 612, 945 P2d 534 (1997) (same). On that point, the Supreme Court has explained, in the context of a medical malpractice claim, that a physician's assurances bear on the question whether the plaintiff reasonably should have discovered that his or her injuries were caused by the physician's negligence. Gaston v. Parsons, 318 Or 247, 257-58, 864 P2d 1319 (1994). In Gaston, the patient lost the use of his arm after an operation but had not been warned that that loss was a possible risk of the surgery. The court held that, in light of the physician's later assurances that the loss was temporary, the question whether the patient should have known that his loss was a result of the physician's negligence was a factual question for the jury.
Gaston's reasoning applies equally here. See Hoeck, 149 Or App at 613. Plaintiff and defendant stood in a relationship of trust and confidence. A fact finder could reasonably conclude that defendant reasonably relied on plaintiff's assurances that the result he had obtained was "at least as good as we could have expected had [Consolidated] not filed for Chapter 11 Bankruptcy ." Even if defendant could have questioned his attorney's assurances, the question whether he should have done so is, on this record, an issue for the fact finder. The trial court correctly ruled that plaintiff's statute of limitations defense did not entitle it to summary judgment. It erred, however, in holding that the affidavit defendant's attorney submitted was not sufficient to create a disputed issue of fact on the elements of breach and damages.
Reversed and remanded.
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