cause of action “accrued” at time plaintiff obtained knowledge, or reasonably should have obtained knowledge, of tort committed upon her person by defendant
How later courts described this case
- cause of action “accrued” at time plaintiff obtained knowledge, or reasonably should have obtained knowledge, of tort committed upon her person by defendant
- unlike malpractice claims, ‘other tort actions * * * are normally immediately ascertainable upon commission of the wrong.’
- “To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, “You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,’ makes a mockery of the law.”
- explaining the difficulty in inferring legislative intent from inaction
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Lesch v. DeWitt
245 Or. 307, 309 , 421 P.2d 996 (1966), superseded by statute as stated in Lesch v. DeWitt, 118 Or. App. 397
Distinguished
Distinguished by Whalen v. American Medical Response Northwest, Inc., 256 Or. App. 278 (2013)
Nonetheless, defendants argue that the discovery rule does not apply here for two reasons: (1) the text of ORS 12.110(1) does not create a discovery rule for battery claims and (2) the discovery rule articulated in Berry and its progeny is inapplicable to battery claims because those claims are “inherently discoverable.
The opinion
PERRY, J.,
dissenting.
While I am convinced that injustices have occurred in the past due to our present statute of limitations and that justice would be better served if the period of limitation was delayed until such time as a patient discovered or reasonably could have discovered that a tort had been committed upon his person, I am equally convinced that the statute will not logically or reasonably permit the interpretation placed upon it by the majority.
The reasons in law which will not permit the majority’s interpretation are well stated by this court in Wilder v. Haworth, 187 Or 688 , 213 P2d 797 (1950); and again in Vaughn v. Langmack, 236 Or 542 , 390 P2d 142 (1964).
Malpractice is a tort committed against the person of the plaintiff and it is the universal rule that causes of action for torts inflicted upon the person of an *317 individual run from the time the injury is inflicted, not from the time the extent of the damage is ascertained. Wood on Limitations, 4th ed, § 179.
I am unable to discern how we can conscientiously distinguish the accrual of this cause of action from that received by a person in an automobile accident who is apparently uninjured but years later discovers that the slight trauma produced cancer. But, regardless of unsettling the law applicable to reach an equitable result, it is the duty of the legislature to determine as a matter of public policy matters relating to the statutes of limitation.
In regard to the observation that the legislature did not consider the effect of the statute on malpractice injuries, it is interesting to note that in the 1963 session of the legislature the following bill was introduced which passed the House and was defeated in the Senate:
“Section 1. An action to recover damages for injury to the person caused by malpractice of a physician, dentist, podiatrist or operator of a hospital or sanitarium 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; provided that such action shall be commenced within four years from the date of the act or omission upon which the action is based.”
And again in the 1965 session of the legislature the following bill was introduced, passed the House and was again defeated in the Senate:
“Section 1. An action to recover damages for injury to the person caused by malpractice of a physician, dentist, podiatrist, or operator of a hospital or sanitarium, shall be commenced within two years from the date when the injury is first dis *318 covered or in the exercise of reasonable care should have discovered; provided that such action shall be commenced within four years from the date of the act or omission upon which the action is based.”
Since- the representatives of the people have demonstrated that they are cognizant of the problem and up to this time have not seen fit to change the statute as it has been twice interpreted by this court, first in 1950 and again in 1964, to say the least, it is presumptions for this court to do so.
For the above reasons, I dissent.