MEDICAL AND DENTAL MALPRACTICE / §55.2
E.
F.
II.
Ultimate Repose. The statute of repose is distinct from the statute of limitations. In any event, an action must be commenced within five years of the date of the treatment, omission, or operation on which the action is based. ORS 12.110(4); Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 455-456, 918 P2d 453 (1996), rev den, 329 Or 287 (1999). •
If the plaintiff failed to bring a malpractice action within five years because of fraud, deceit, or misrepresentation made by the doctor, the action must be commenced within two years from the date that the fraud, deceit, or misrepresentation is discovered or, in the exercise of reasonable care, should have been discovered. ORS 12.110(4).
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The five-year limitation also applies to minors. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988).
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The five-year limitation applies even if the plaintiff’s action is based on misdiagnosis of a disease with a long latency period. Barke v. Maeyens, 176 Or App 471, 31 P3d 1133 (2001), rev den, 333 Or 655 (2002).
Wrongful Death. If the alleged malpractice causes the death of a patient, the three-year wrongful death limitation (ORS 30.020(1)) applies, rather than the two-year personal injury limitation found in ORS 12.110(4). Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979). •
A wrongful death action must be commenced not later than the earlier of (1) three years after the death of the decedent or (2) the longest of any other period for commencing an action under an applicable statute of repose. ORS 30.020.
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See also ULTIMATE REPOSE; WRONGFUL DEATH.
(§55.2) A.
Accrual of Cause of Action
Discovery Rule. The plaintiff “discovers” that he or she has a claim for malpractice 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.” Gaston v. Parsons, 318 Or 247, 256, 864 P2d 1319 (1994). •
The general policy behind the “discovery rule” is to delay the running of the statute of limitations until the injured person knows or should have known that he or she has a cause of action so that the law does not strip the plaintiff of a remedy before he or she could know of the wrong. See ORS 12.110(4).
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Commencement of the running of the statute of limitations is not delayed until the patient procures expert testimony to support a claim.
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