 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Keller v. Armstrong World Industries2/9/2005
versary, the plaintiff's medical provider. The majority's assumption that a plaintiff must have the same level of certainty of the required elements under both ORS 12.110(4) and ORS 30.907 misses the understanding that the "substantial possibility" test under ORS 12.110(4) exists to identify the point on the continuum of awareness at which a patient will be deemed to have the reasonable opportunity to become aware of his medical provider's negligence.
In contrast to ORS 12.110(4), ORS 30.907 does not address unique circumstances where discovery is inherently difficult because of physician/patient relationships. Rather, ORS 30.907 is an ordinary statute of limitations like other statutes of limitation that govern claims where there are not the kinds of impediments to the opportunity to discover the elements of a claim that exist under ORS 12.110(4). ORS 30.907 requires only that the plaintiff discover or, in the exercise of reasonable care, should have discovered "the disease and the cause thereof" in connection with a product liability claim. Unlike under ORS 12.110(4), the information that a plaintiff needs to acquire to have a reasonable opportunity to bring a timely asbestos-related product liability claim is not in the possession of his adversary (an adversary with whom the plaintiff has a relationship of trust and confidence and where the adversary's assurances that nothing is wrong may be particularly influential) where it cannot be imputed to the plaintiff. The medical information about the nature of a plaintiff's disease and its cause is readily accessible to the plaintiff because the plaintiff need only inquire of a medical provider to become aware of the information contained in his medical records and the provider's opinion as to causation. In actuality, the medical provider is an ally of the plaintiff under ORS 30.907 rather than an adversary to discovery, and the knowledge of the medical provider under such circumstances is properly imputed to the plaintiff.
In summary, although the policy objectives of ORS 12.110(4) and ORS 30.907 are the same, the difference in the circumstances that the statutes address operates to dispense with any need for the courts to superimpose a "mere suspicion/substantial possibility" sliding scale on the legislature's language in ORS 30.907. In effect, such a requirement would be superfluous because the impediments to discovery due to physician/patient relationships that exist under ORS 12.110(4) do not arise under ORS 30.907. There is no danger of the limitations period expiring under ORS 30.907 before a plaintiff can discover a claim due to a medical provider concealing pertinent information from a putative plaintiff. Where the legislature's language in a statute adequately expresses its intention, as occurs in ORS 30.907, this court has no authority, in the guise of interpretation, to add a gloss to the legislature's words, as occurs through the majority's insertion of ORS 12.110(4)'s "injury" requirements into ORS 30.907. See ORS 174.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein[.]"). It is for that reason that I believe that the majority errs when it borrows from ORS 12.110(4) for purposes of interpreting ORS 30.907.
Additionally, the majority relies heavily on two cases, Doe v. American Red Cross, 322 Or 502, 910 P2d 364 (1996), and Greene v. Legacy Emanuel Hospital, 335 Or 115, 60 P3d 535 (2002), that were decided under ORS 12.110(4). It posits:
"As the court made clear in Doe and Greene, that obligation must be accompanied by evidence of what the plaintiff would have learned had he or she undertaken the discovery effor
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|