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Keller v. Armstrong World Industries2/9/2005
nable opportunity to discover the "injury" in a medical malpractice claim is influenced by the physician/patient relationship because the tortfeasor physician has the ability through assurances to the patient to delay a reasonable person from becoming aware that an "injury" has occurred. Gaston, 318 Or at 257. As the Gaston court noted,
" he significance of the physician's statements is that they are circumstances to be considered in determining the reasonableness of the plaintiff's actions. Any statement made by the physician * * * is to be considered along with other circumstances (e.g., the nature of the harm, the nature of the surgery performed) in evaluating when a plaintiff reasonably should have discovered that he or she was suffered a legally cognizable harm."
Id. at n 9. In fact, as the Gaston court observed, " physician's assurances may be particularly influential on a plaintiff because the physician-patient relationship is 'a relationship of trust and confidence * * * in which continued treatment or other resort to the skills of the defendant is required.'" Id. at 257 (quoting Cavan v. General Motors, 280 Or 455, 458, 571 P2d 1249 (1977) (ellipses in original)).
Recall that the goal of the reasonable discovery doctrine is to avoid the circumstance in which the limitations period expires before a plaintiff has the opportunity to discover the existence of the claim. Frohs, 253 Or at 4. What is unique about ORS 12.110(4), when contrasted with other statutes of limitations, is that it applies to tortious conduct arising out of physician/patient relationships where such relationships are potential impediments to the opportunity of plaintiffs to reasonably discover their claims. Those impediments to discovery drive the need to quantify how much information is enough information for purposes of the statute before the limitations period commences. The Gaston court's response to those impediments was to formulate a "quantum of awareness" rule. The court explained:
"Actual knowledge that each element [of an 'injury'] is present is not required. On the other hand, a mere suspicion [of medical malpractice] is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.
"We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care. In such cases, the relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation. * * * Relevant to this analysis will be a plaintiff's failure to make a further inquiry if a reasonable person would have done so."
Gaston, 318 Or at 256 (emphasis added).
Thus, the words "mere suspicion" and "substantial possibility" are used by the Gaston court to describe the dividing point on a scale of awareness sufficient to trigger the beginning of the limitations period in ORS 12.110(4) for purposes of the particular circumstances that the statute addresses. The rule that a "mere suspicion" of an injury on the part of a putative plaintiff in a medical malpractice case will not trigger the beginning of the limitations period reflects the understanding that plaintiffs, as lay persons and patients, are not expected to know about medical matters within the exclusive knowledge of the plaintiff's ad
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