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Barke v. Maeyens9/12/2001
Argued and submitted May 7, 2001.
Affirmed.
Plaintiff, Barbara Barke, the personal representative of the estate of her deceased husband, Randall Barke, appeals from a judgment dismissing her wrongful death action on the ground that it was barred by the ultimate repose provision of ORS 12.110 4.
She argues that that provision violates Article I, section 10, and Article I, section 20, of the Oregon Constitution. For the reasons set forth below, we affirm the trial court's dismissal of plaintiff's claim.
In reviewing the granting of a motion to dismiss, we assume the truth of all allegations in the complaint, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party. Jaqua v. Nike, Inc., 125 Or App 294, 296, 865 P2d 442 (1993). The complaint alleges: In December 1992, Randall Barke was treated by defendant, Edgar Maeyens, Jr., M.D., for a lesion on his scalp. Defendant shaved the lesion and sent it to a lab for a biopsy. Defendant diagnosed a benign mole. Barke sought no further treatment for the problem until March 10, 1998, when he consulted defendant about a lump on the same area of his scalp. Defendant performed an incision and drainage. In April 1998, defendant referred Barke out for a total excision. In May 1998, Barke was diagnosed with metastatic malignant melanoma. Re-evaluation of the 1992 biopsy showed malignant cells.
On January 10, 2000--within two years of his discovery of the alleged malpractice, but more than five years after his treatment with defendant--Barke brought this action, alleging medical malpractice. Barke alleged, particularly, that defendant was negligent in failing to detect the presence of malignant cells in the 1992 biopsy and in failing to provide appropriate treatment. His wife, Barbara Barke, also sought damages for loss of consortium. Upon Barke's death shortly thereafter, Barbara Barke was appointed personal representative of his estate, which was then substituted as plaintiff in this action.
Defendant moved, under ORCP 21 A(9), to dismiss the complaint on the ground that the face of the complaint revealed that it had not been filed within the limitations period prescribed in ORS 12.110(4). The trial court granted defendant's motion, and this appeal ensued.
ORS 12.110(4) provides:
"An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160 [concerning tolling of the limitations period for persons under disabilities], every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered." (Emphasis added.)
Plaintiff acknowledges that this action was not "commenced within five years from the date" of defendant's alleged negligent acts committed in 1992. Plaintiff argues that the five-year "ultimate repose" provision of ORS 12.110(4), which limits the "discovery rule" embodied in the previous sentence of ORS 12.110(4), violates both Article I, section 10, and Article I, section 20, of the Oregon Constitution.
We turn first to plaintiff's argument under Article I, section 20. Arti
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