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Barke v. Maeyens9/12/2001
XXII, §§ 275-76 (discussing discovery rule only in context of fraud) (1983); Angell, Limitations of Actions, ch XXVII, § 183-85 (the discovery rule was well established in equitable cases involving fraud, but jurisdictions were in conflict as to whether there was a fraud discovery exception in actions at law).
The discovery rule, as applied to medical malpractice actions, was primarily a judicial creation of the 1950s and 1960s. Corman, 2 Limitation of Actions § 11.1.2.1 (citing cases). The Supreme Court followed the trend in applying a discovery rule to medical malpractice when it decided Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), holding that the cause of action did not accrue until the harm was discovered. In Berry, the court openly acknowledged that it was not taking a historical approach, and instead, looked to other jurisdictions and discerned and followed a modern trend in favor of discovery rules in medical malpractice cases. Id. at 313-15. It is clear from the cases cited in Berry, as well as from the cases cited in the earlier decision of Vaughn v. Langmack, 236 Or 542, 390 P2d 142 (1964), which reached the opposite result, that the discovery rule as applied to medical malpractice actions was a 20th-century creation. See also Shasta View Irrigation Dist. v. Amoco Chemicals, 329 Or 151, 184 n 15, 986 P2d 536 (1999) (Durham, J., concurring in part and dissenting in part) ("early statutes of limitation shared more than a semantic similarity to modern statutes of repose, especially in their objective of bringing an end to potential litigation through the expiration of time").
In short, we are aware of no precedent, either common law or statutory, that would indicate that the territorial legislature that enacted the 1854 statute of limitations intended to embody a discovery rule within the statute as to any cause of action other than one based on fraud. There is no basis to assume that the remedy provision of Article I, section 10, enacted several years later, was intended to give plaintiffs a right to commence actions that were barred under then-existing statutes of limitation.
Thus, even assuming that plaintiff is correct that this wrongful death action is more properly viewed as a survival action and thus is a type of action that the remedies clause protects, and even assuming that the remedies clause goes so far as to protect not only causes of action but the rules governing the accrual of causes of action as they existed at the time of the enactment of the Oregon Constitution, the remedies clause nonetheless would not guarantee plaintiff the right to initiate a personal injury action based on negligent acts that occurred some seven years before the action was initiated. In short, plaintiff's action would have been time barred under the law as it existed at the time that Article I, section 10 was enacted, just as it is barred under current law.
The trial court correctly concluded that ORS 12.110(4) is not unconstitutional as applied to plaintiff.
Affirmed.
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