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Kastle v. Salem Hospital

Court of Appeals of Oregon

March 15, 2017

Ray F. KASTLE, guardian ad litem of Shaun Kastle, an incapacitated adult, Plaintiff-Appellant,
v.
SALEM HOSPITAL; Jack Buchanan, MD; Martin Johnson, MD; and Kelli Kruse, Defendants, and Saleh ISMAIL, MD, and Salem Pulmonary Associates, PC., Defendants-Respondents.

          Argued and submitted August 17, 2016.

         Marion County Circuit Court 12C24245, Audrey J. Broyles, Judge pro tempore.

          Kathryn M. Pratt argued the cause for appellant. On the opening brief was Brian R. Whitehead. With her on the reply brief was Pratt Law Offce LLC.

          Jay W. Beattie argued the cause for respondents. With him on the brief were Jeffrey S. Young and Lindsay Hart, LLP.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         Plaintiff appeals from a judgment dismissing his medical malpractice action. Plaintiff's amended complaint alleged that newly added defendants provided negligent treatment that caused him to develop a neurological disorder. Invoking ORCP 21 A(9), defendants moved to dismiss the complaint as barred by the statute of limitations for medical negligence, ORS 12.110(4), which provides, in part, that an action “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.” The parties dispute whether the complaint shows that plaintiff failed to bring the action within the requisite limitations period.

         Held:

         The trial court erred because the complaint does not show on its face that plaintiff failed to commence this action within the time limited by statute. Review of an order granting dismissal under ORCP 21 A(9) is limited to the face of the complaint. Plaintiff's claim accrued, and the statute of limitations began to run, when the plaintiff knew or, in the exercise of reasonable care, should have known facts which would make a reasonable person aware of a substantial possibility that (1) plaintiff suffered harm, (2) the harm was caused by defendants' acts, and, (3) defendants' acts were tortious. Nothing in the complaint demonstrated that plaintiff discovered or reasonably should have discovered defendants' role in his injury more than two years before he amended the complaint to commence this action against the new defendants. The complaint also did not demonstrate that defendants' role was “inherently discoverable” such that defendants should have been discovered sooner. Reversed and remanded.

         Reversed and remanded.

          DEVORE, J.

         This appeal concerns the application of the statute of limitations to a complaint for medical malpractice involving newly added defendants. Plaintiff alleged that negligent treatment of low sodium levels in his blood serum caused him to develop a neurological disorder, central pontine myelinolysis (CPM). Invoking ORCP 21 A(9)[1] defendants moved to dismiss the complaint as barred by the statute of limitations for medical negligence, ORS 12.110(4).[2] Plaintiff moved to amend the complaint to plead delayed discovery of his claim and to plead a disabling mental condition, which would toll the statute of limitations.[3] The trial court denied plaintiffs motion to amend and granted defendants' motion to dismiss with prejudice.

         On appeal, the parties primarily dispute whether the operative complaint shows that plaintiff failed to commence the action within the time limited by statute after he discovered or reasonably should have discovered his claim. Plaintiff makes other assignments of error, but we do not reach them because they become moot or unnecessary after determination of the primary issue. On the primary issue, we conclude that the complaint does not show on its face that plaintiff commenced this action outside the limitations period. Because the trial court erred, we reverse and remand for further proceedings.

         In reviewing an order granting dismissal under ORCP 21 A(9), our review is limited to the face of the operative complaint. Kelly v. Lessner, 224 Or.App. 31, 33, 197 P.3d 52 (2008). In this case, that is the third amended complaint.[4] "In conducting that review, we assume the truth of all allegations in the complaint and give the plaintiff, as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations." Id.

         The facts, as alleged, are as follows. Plaintiff experienced hyponatremia, a medical condition involving a low sodium level in his blood serum. On or about August 17, 2011, plaintiff sought diagnosis and treatment at the Salem Hospital's urgent care clinic. That care included testing his serum sodium and potassium levels. On or about August 19, 2011, plaintiff returned to the hospital's emergency room, reporting seizures and fainting episodes. The hospital tested plaintiff's blood again and found that his sodium and potassium measures had declined to life-threatening levels. An emergency room physician ordered intravenous sodium replacement therapy at a level below 10 millimoles per liter (mmol/L) in a twenty-four hour period. Serum sodium therapy should be kept below that amount in order to prevent the development of CPM. On the afternoon of August 19, plaintiff was transferred to the hospital's intensive care unit, where Dr. Johnson ordered sodium replacement therapy that allegedly resulted in plaintiff's serum sodium level increasing more than 10 mmol/L in a twenty-four hour period.

         On August 19 and 20, 2011, Dr. Ismail became responsible for plaintiff's care. Ismail allegedly failed to monitor so as to ensure that nurses did not administer too much intravenous saline to plaintiff. Although saline had been discontinued due to previously improper sodium ...


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