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Humphrey v. Oregon Health & Sciences University

Court of Appeals of Oregon

June 21, 2017

Johnnie HUMPHREY, individually, Plaintiff-Appellant,
v.
OREGON HEALTH & SCIENCES UNIVERSITY, aka OHSU, a quasi-public entity; Kevin Arce, D.M.D., individually; and Michael Wilkinson, D.M.D., individually, Defendants-Respondents.

          Argued and submitted November 4, 2015

         Multnomah County Circuit Court 130710001; Kathleen M. Dailey, Judge.

          Lisa T. Hunt argued the cause for appellant. With her on the briefs was Law Offce of Lisa T. Hunt, LLC.

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

          Before Lagesen, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.

         Case Summary: Plaintiff experienced severe complications following an oral surgery performed by doctors at Oregon Health & Science University (collectively "defendants"), necessitating numerous additional surgeries and medical procedures. Defendants provided that additional medical care to plaintiff at little or no cost. Almost five years after her initial surgery, plaintiff fled a complaint for professional medical negligence against defendants. The trial court dismissed her claim as untimely and for failure to comply with the notice requirements of the Oregon Tort Claims Act (OTCA). Plaintiff appeals, arguing that she sufficiently pleaded that defendants made a "payment" to her, in the form of free or discounted medical care, which both suspended the running of the two-year statute of limitations in ORS 30.275(9) and evidenced the required OTCA notice under ORS 30.275(3)(d). Held: The trial court erred when it dismissed plaintiff's claim. Plaintiff satisfied the OTCA notice requirement by alleging facts sufficient to prove that defendants paid "all or any part of the claim" that she ultimately brought against defendants, ORS 30.275(3)(d), even though plaintiff did not [286 Or.App. 345] expressly allege that she made an assertion of legal liability against defendants. Plaintiff also adequately alleged that the limitations period was tolled because defendants made an "advance payment" under ORS 12.155 without providing her with written notice of the date of expiration of the statute of limitations.

         Reversed and remanded.

         [286 Or.App. 346] GARRETT, J.

         Plaintiff appeals the trial court's judgment dismissing her medical malpractice claim, under ORCP 21 A, as untimely and for failure to comply with the notice requirements of the Oregon Tort Claims Act (OTCA). Plaintiff argues that she sufficiently pleaded that defendants made a payment to her, in the form of free or discounted medical care, which both suspended the running of the statute of limitations and evidenced the required OTCA notice under ORS 3O.275(3)(d).[1] She also argues that complaints that she made to defendants satisfied the "actual notice" requirement under ORS 3O.275(3)(b). As explained below, we agree with plaintiff that she satisfied the OTCA notice requirement by alleging facts sufficient to prove that defendants paid "all or any part of the claim" that she ultimately brought against defendants, ORS 3O.275(3)(d). We also conclude that plaintiff adequately alleged that the limitations period was tolled because defendants made an "advance payment" under ORS 12.155 without providing her with written notice of the date of expiration of the statute of limitations. The judgment is reversed.

         In reviewing a trial court's grant of a motion to dismiss, we assume the truth of all well-pleaded facts alleged in the complaint and give plaintiff, the nonmoving party, the benefit of all favorable inferences that may be drawn from those facts. Kilminster v. Day Management Corp., 323 Or. 618, 621, 919 P.2d 474 (1996).

         Plaintiff underwent oral surgery at defendant Oregon Health & Science University (OHSU) on July 14, 2008. The surgery was performed by Dr. Arce and Dr. Wilkinson, also defendants and employed by OHSU. The surgery involved "applying cryotherapy with liquid nitrogen" and was supposed to be "routine." However, in the days immediately following the procedure, plaintiff experienced pain and bleeding in her mouth, had difficulty swallowing, and could not eat. On July 19, plaintiff reported "significant [286 Or.App. 347] pain" to OHSU medical personnel and was eventually diagnosed with "clinical and subjective symptoms of mucosal burn from the liquid nitrogen." In the weeks and months that followed, plaintiff experienced complications including infections, tissue death, loss of feeling in her lip and tongue, and a fracture of her lower jaw. Between July 2008 and October 2010, plaintiff underwent four additional "oral surgeries to debride the dead tissue in [her] mouth and to repair her fractured jaw, as well as three more oral procedures to install implants for two of [her] teeth that had to be removed." Defendants provided that additional medical care to plaintiff at little or no cost. Following the series of procedures, plaintiff was left with nerve damage and disfigurement.

         Almost five years after her initial surgery, on July 12, 2013, plaintiff filed a complaint for professional medical negligence against OHSU, Arce, and Wilkinson. Because OHSU is a quasi-public entity, plaintiff's claim is subject to the OTCA, including the two-year statute of limitations, ORS 30.275(9), and the notice requirement, ORS 30.275(2). With respect to notice, ORS 3O.275(2)(b) provides that a notice of a claim (other than a claim for wrongful death) must be given "within 180 days after the alleged loss or injury." Notice may be provided in four distinct ways:

"(a) Formal notice of claim as provided in subsections (4) and (5) of this section;
"(b) Actual notice of claim as provided in subsection (6) of this section;
"(c) Commencement of an action on the claim by or on behalf of the claimant within the applicable period of time provided in subsection (2) of this section; or
"(d) Payment of all or any part of the claim by or on behalf of the public body at any time."

ORS 30.275(3). The plaintiff bears the burden of proving that the requisite OTCA notice was given. ORS 30.275(7).

         Defendants moved to dismiss plaintiff's complaint on two grounds: (1) that it was time-barred, and (2) that plaintiff had failed to allege that she provided the OTCA notice required by ORS 30.275(2). With respect to notice, [286 Or.App. 348] plaintiff responded that she had satisfied the requirement by pleading (1) "actual notice" to OHSU under ORS 3O.275(3)(b), and (2) "payment of all or any part of the claim" by OHSU under ORS 3O.275(3)(d).[2] With respect to the statute of limitations, plaintiff argued that she had pleaded facts sufficient to establish that the two-year period was tolled under ORS 12.155[3] because defendants made an "advance payment" to her ...


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