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Smith v. Oregon Health Science University Hospital and Clinic

Court of Appeals of Oregon

July 22, 2015

Shalene SMITH, as Guardian ad litem for Rubin Smith, Plaintiff-Appellant,

Argued and Submitted March 6, 2015

111115016. Multnomah County Circuit Court. Richard Maizels, Judge pro tempore.

Michael Vergamini argued the cause and filed the briefs for appellant.

Janet M. Schroer argued the cause for respondent. With her on the brief were Ruth C. Rocker and Hart and Wagner LLP.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Tookey, Judge.


Page 143

[272 Or.App. 474] TOOKEY, J.

Plaintiff, as guardian ad litem for child,[1] appeals a judgment entered in favor of defendant Oregon Health Science University Hospital

Page 144

and Clinic. Plaintiff argues that the trial court erred when it granted defendant's motion for summary judgment after concluding that plaintiff had failed to timely file her claim. We conclude that no objectively reasonable factfinder could conclude that plaintiff's action arose any later than August 30, 2007, and that plaintiff failed to commence her action within the two-year time limitation set forth in ORS 30.275(9); however, we further conclude that the tolling provision in ORS 12.160 (2005) applied to plaintiff's claim and, given the tolling, plaintiff timely commenced her action. Thus, the trial court erred when it granted summary judgment in favor of defendant. Accordingly, we reverse and remand.

Summary judgment is appropriate if " there is no genuine issue as to any material fact and * * * the moving party is entitled to prevail as a matter of law." ORCP 47 C. There is no genuine issue of material fact if, based on the record, " no objectively reasonable [factfinder] could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. In determining whether a genuine factual dispute exists, we review the record in the light most favorable to the nonmoving party--in this case, plaintiff--and draw all reasonable inferences in her favor. Id. ; Jones v. GMC, 325 Or. 404, 420, 939 P.2d 608 (1997). We state the facts consistently with that standard.

On May 31, 2007, child, who was three weeks old at the time, underwent surgery at defendant's hospital. At that time, plaintiff understood that the surgery was part of a treatment for a condition called Hirschsprung's disease, which had caused a bowel obstruction in child. Plaintiff was informed that a damaged portion of child's colon would be removed and a colostomy[2] would be performed, in which the [272 Or.App. 475] functional end of the remaining colon would be attached to a colostomy bag and the end of the colon leading to the rectum would be sutured closed. Then, several months later, another surgery would be performed to " take down" the colostomy and reattach the two ends of the colon.

During the first surgery, the surgeon, by mistake, sutured the functional end of child's colon closed and attached the colostomy bag to the portion of the colon that was meant to have been sutured closed; as a result, child's intestines became obstructed again. X-rays taken on June 7, 2007, revealed the surgical error and showed that child's intestines had become abnormally distended[3] as a result. That same day, child underwent emergency surgery to correct the error, during which an additional portion of colon had to be removed and the colostomy was performed again.

On July 6, 2007, plaintiff sent defendant a " formal grievance," in which plaintiff stated, in part, that child " could have died because of the mistake of hooking up the wrong ends of his intestines to the colostomy bag," and that plaintiff was " very concerned for [child's] long term overall health and well-being" because of, among other things, " the prolonged exposure to narcotics," " the skin breakdown from the necessary medications to care for his skin," and " undergoing a second surgery that should have been done right the first time."

Then, on August 30, 2007, plaintiff sent defendant a " formal claim," in which she asserted that " the second surgery would have not been needed had the first surgery been done correctly," and that child had suffered, among other things, an immense amount of pain, multiple exposures to radiation, multiple intravenous (IV) lines, prolonged exposure to pain narcotics and anesthetic, a thigh burn because of a ruptured IV line, and " suffering through almost 3 weeks of starvation." Plaintiff stated, " We just want to have our healthy boy's third and hopefully final surgery to reconnect his colon and intestines covered through the hospital and any future thoracic/abdominal complications that may arise." Plaintiff also stated, " We are seeking financial compensation [272 Or.App. 476] for my Husband['s] time off from work

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and the pain and suffering for this family that came from this entire experience as well as future problems that may arise." We have found no evidence in the summary judgment record indicating what, if any, response plaintiff received from defendant.

Several months later, when child was eight months old, he underwent a third surgery at defendant's hospital, to " take down" the colostomy and reattach the two ends of the remaining colon. However, child continued to suffer abdominal and rectal problems. On November 16, 2009, child underwent a colonoscopy, which, according to plaintiff, revealed that " most of the sigmoid colon had been unnecessarily removed in the 2007 surgery and that the scar ...

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