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Greene v. Legacy Emanuel Hospital and Health Care Center12/27/2002
Argued and submitted January 4, 2001.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
This is an action to recover damages for injuries that plaintiff received during a surgical operation. The issue is whether plaintiff commenced the action after expiration of the two-year period of limitations set out in ORS 12.110(4), quoted below. The trial court concluded that plaintiff's action was time-barred and granted summary judgment, ORCP 47, in favor of defendant Nesler. The Court of Appeals affirmed. Greene v. Legacy Emanuel Hospital, 165 Or App 543, 997 P2d 265 (2000). For the following reasons, we also affirm.
We review the record on summary judgment in the light most favorable to the non moving party below -- here, plaintiff -- and draw all reasonable inferences from the facts in her favor. Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997).
On July 26, 1995, plaintiff entered Legacy Emanuel Hospital so that her physician, Nesler, could perform outpatient surgery to abort a fetus with severe abnormalities. During the procedure, Nesler perforated plaintiff's uterine wall and colon with forceps. Nesler completed the abortion and other doctors repaired the perforations. The surgery lasted six hours and led to an 11-day recuperation in the hospital. Plaintiff has suffered permanent injuries from the surgical complication.
Plaintiff retained a lawyer, Zeitz, to represent her in connection with the surgery. On August 22, 1995, Zeitz sent the hospital a request for a copy of plaintiff's medical records. On November 10, 1995, the hospital provided the pertinent records to Zeitz. On May 14, 1996, Zeitz sent a letter to the hospital and Nesler offering to settle plaintiff's claims. The letter described in detail the injuries that plaintiff suffered during the surgery.
In March 1997, plaintiff retained another lawyer, Miller, to represent her. Miller obtained plaintiff's medical records from Zeitz and sought an evaluation of plaintiff's case from other physicians. In June 1997, one of the physicians that Miller had contacted opined that Nesler's surgical treatment of plaintiff was negligent.
In an affidavit, plaintiff said the following regarding her awareness of the pertinent facts:
"* * * I did not discover that treatment I received from Dr. Nesler, on or about July 26, 1995, was somehow negligent until several months after the initial procedure. I was aware that a complication had occurred which required me to remain in the hospital for eleven (11) days after the initial procedure. Thus, I was aware of an injury and that the injury was the result of Dr. Nesler's conduct. But, I was not made aware that Dr. Nesler was somehow negligent until my attorney Sanford W. Zeitz had an opportunity to review all requested medical information.
"Attorney Zeitz requested all medical information * * * on August 22nd, 1995. The requested medical information was not provided until on or about November 10th, 1995. Thus, my attorney at that time had an opportunity to have this medical information evaluated by a medical doctor.
"In March 1997, I retained Robert J. Miller, Sr. to take over representation of my case. Mr. Miller obtained all medical information from attorney Zeitz and had it evaluated by two medical doctors. One of the physicians agreed and informed me that Dr. Nesler's conduct was outside the standards of care for this community. This was the first time that I had actual confirmation of negligent conduct by Dr. Nesler. It was approximately during the month of June 1997 when I received confirmation of the negligent treatment.
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