Eldridge v. Eastmoreland General Hospital , 88 Or. App. 547 ( 1987 )

WARREN, J.

Plaintiff appeals the trial court’s dismissal of this wrongful death action on Statute of Limitations grounds. We affirm.

Plaintiff is the personal representative of the estate of the deceased, Renee Eldridge. The fifth amended complaint alleges that on May 9,1981, the day of decedent’s birth, defendant Laszlo and another physician, acting as agents of Eastmoreland General Hospital, were negligent in the placement of an endotracheal tube in decedent’s esophagus, which caused her death in September, 1981. Plaintiff then alleges:

“[P]laintiff reasonably believed Renee Eldridge’s problems were caused by prenatal care and treatment and care and treatment during labor and delivery and further reasonably believed the University of Oregon Health Sciences Center records would only disclose the damage thus caused to the child.

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“That neither the Eastmoreland General Hospital records for Michelle Eldridge nor the Eastmoreland General Hospital records for Renee Eldridge contained information regarding the improper intubation and inadequate postnatal resuscitative efforts of Renee Eldridge.

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“That plaintiff did not discover and could not reasonably discover the negligence and improper intubation by defendants until April 3,1984, when plaintiff obtained copies of the University of Oregon Health Sciences Center transport records that defendants had deliberately in their charting of this case in the Eastmoreland Hospital charts concealed the fact of the improper intubation.”

A wrongful death action must be commenced within three years after the occurrence of the injury causing the death. ORS 30.020(1). The allegedly negligent treatment occurred on May 9, 1981, and plaintiffs decedent died on September 7,1981. The complaint was originally filed against the hospital and doctors other than Laszlo on February 17, 1984. It was amended on February 28,1986, to add him as an additional defendant.¹ In Shaughnessy v. Spray, 55 Or App 42, 637 P2d 182 (1981), rev den 292 Or 589 (1982), we held that, in a wrongful death action, the limitation period commences when the plaintiff discovers or should have discovered that the harm was caused by the defendant. Discovery occurs, and the time begins to run, when the plaintiff knows, or through diligent inquiry should know, facts from which a reasonable fact-finder could conclude that the injury was caused by an act of the defendant that was negligent. Duncan v. Augter, 62 Or App 250, 661 P2d 83, rev den 295 Or 122 (1983).

When a complaint shows on its face that the period for bringing an action has run, the plaintiff, to avoid the bar, must plead .facts sufficient to show that the delay is excused. The question here is whether, taking the facts pleaded as true, the complaint shows that plaintiff could not, through diligent inquiry, have learned that defendant negligently caused the injury until April, 1984. Because the demurrer was sustained, the complaint must be construed most strongly against the pleader. Consolidated Freightways v. Eddy, 266 Or 385, 513 P2d 1161 (1973). We presume that plaintiff has stated her cause of action as favorably as possible. State ex rel Cox v. Wolfe, 25 Or App 551, 549 P2d 1281 (1976).

Plaintiff would have us conclude that the allegations of her complaint sufficiently establish that she did not know, nor could she have known, facts from which a reasonable person could find that Laszlo was negligent before April, 1984. She contends that the relevant time for purposes of the Statute of Limitations was when she obtained copies of the Oregon Health Sciences University records in which Laszlo’s negligence was disclosed. The complaint does not allege, however, that she was unaware of the existence of the records before that time. The contrary is, in fact, implicit in her allegation that she believed that the records would disclose only negligence in the prenatal care and delivery of her child. Had she examined the records which she believed contained some information relevant to a claim which she knew she had, she would have discovered the claim against Laszlo. A reasonably diligent person with the belief that certain records were relevant to her theory of the case would have, at the least, tried to obtain the records or otherwise discover the information contained in them. Plaintiff does not allege that she was unaware of the records, that they were unavailable or that they were otherwise secreted from her. In fact, she affirmatively alleges that she believed they contained information relevant to the claim she had already made. That is not an excuse for failure to discover their contents but a reason why their contents should have been discovered. In Peterson v. Mult. Co. Sch. Dist. No. 1, 64 Or App 81, 668 P2d 385, rev den 295 Or 773 (1983), relied on by the dissent, plaintiff did not know that OSAA had any information relevant to any part of his injury claim. The complaint here fails to establish that a reasonably diligent person could not have discovered defendant’s negligence until April, 1984.

Affirmed.

1 The claims against the other defendants have been dismissed. Plaintiff appeals only the dismissal of the claim against Laszlo, the doctor who performed the intubation.