Oregon Appellate Court Revives Medical Malpractice Claim Filed Under Oregon Tort Claims Act

162017_132140396847214_292624_nIn its decision filed on June 21, 2017, the Court of Appeals of the State of Oregon (“Oregon Appellate Court”) reversed the trial court’s dismissal of the plaintiff’s surgical medical malpractice claim filed pursuant to the Oregon Tort Claims Act (OTCA), holding that the plaintiff sufficiently pleaded that the 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 30.275(3)(d), and that the plaintiff adequately alleged that the limitations period was tolled because the 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 plaintiff underwent oral surgery at defendant Oregon Health & Science University (OHSU) on July 14, 2008 that involved applying cryotherapy with liquid nitrogen. In the days after the surgery, the plaintiff experienced pain and bleeding in her mouth, had difficulty swallowing, and she could not eat.

On July 19, 2008, the plaintiff reported significant 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, the 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, the 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. Despite such treatments, the plaintiff was left with nerve damage and disfigurement. Significantly, the defendants provided the additional treatments to the plaintiff at little or no cost.

On July 12, 2013, the plaintiff filed a complaint for professional medical negligence against OHSU and others. Because OHSU is a quasi-public entity, the 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).

ORS 30.275(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.” (emphasis added)

The defendants moved to dismiss the plaintiff’s complaint on two grounds: (1) that it was time-barred, and (2) that the plaintiff had failed to allege that she provided the OTCA notice required by ORS 30.275(2). The trial court granted the defendants’ motion to dismiss and the plaintiff appealed.

Oregon Appellate Court Decision

The Oregon Appellate Court disagreed with the defendants’ contention that the provision of free or discounted medical care cannot constitute a “payment” to satisfy the notice requirement because the defendants did not make, and the plaintiff did not receive, any disbursements of money: although the OTCA does not define the term “payment,” that term is commonly understood to mean “the act of paying or giving compensation” or “something given to discharge a debt or obligation or to fulfill a promise.” “Compensation” is defined as the act or action of “making good,” something that constitutes “recompense,” and “something that makes up for a loss.”

The Oregon Appellate Court stated that the term “payment” can be understood to include the provision of discounted or free medical services. The plaintiff alleged that she suffered a loss at the hands of the defendants in the form of a botched surgery that caused her new injuries; that at least one of the defendants promised to “take care” of her with respect to any necessary remedial treatment; and that, as a result of that promise, the plaintiff either did not pay or paid only a nominal fee for the initial surgery and subsequent medical treatment.

The Oregon Appellate Court stated that the defendants’ conduct following the plaintiff’s initial injury, as alleged, can be readily understood as a form of paying or compensating plaintiff for that injury, and further held that under a correct interpretation of ORS 30.275(3)(d), the plaintiff in the present case sufficiently alleged that the defendants made a payment on her “claim” even though she did not expressly allege that she made an assertion of defendants’ legal liability (“we understand paragraph (3)(d) to mean that a public body is deemed to have been put on notice when a claimant does something that causes the public body to make a payment in connection with the facts underlying the claim that is ultimately asserted”).

The Oregon Appellate Court held: “plaintiff alleged sufficient facts for OTCA notice under ORS 30.275(3)(d) by pleading that defendants paid for the costs of her medical care at a time when she had a basis to assert a claim, and because such costs would be recoverable in the claim that she ultimately asserted for negligence.”

With regard to whether the plaintiff’s claim is barred by the two-year statute of limitations in ORS 30.275(9), the Oregon Appellate Court looked to ORS 12.155, which provides, in pertinent part: “(1) If the person who makes an advance payment referred to in ORS 31.560 or 31.565 gives to each person entitled to recover damages for the death, injury or destruction, not later than 30 days after the date the first of such advance payments was made, written notice of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations, then the making of any such advance payment does not suspend the running of such period of limitation. *** (2) If the notice required by subsection (1) of this section is not given, the time between the date the first advance payment was made and the date a notice is actually given of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations is not part of the period limited for commencement of the action by the statute of limitations.”

The term “advance payment” in ORS 12.155 is defined in ORS 31.550 as “compensation for the injury or death of a person or the injury or destruction of property prior to the determination of legal liability therefor.”

The Oregon Appellate Court stated that to prevent the tolling of the statute of limitations under ORS 12.155, a person who provides “compensation for the injury *** of a person * * * prior to the determination of legal liability therefor” must give written notice of the expiration of the limitations period to “each person entitled to recover damages” for that injury. ORS 31.550, ORS 12.155(1).

The Oregon Appellate Court held that the defendants’ provision of free or discounted medical services qualifies as “compensation’ for the “injury” that the plaintiff suffered, and the defendants provided that compensation “prior to the determination of legal liability” for the plaintiff’s injuries, which is all that is required for an “advance payment” for purposes of the tolling provision in ORS 12.155.

Source Humphrey v. Oregon Health & Sciences University, 286 Or App 344 (2017)

If you or a loved one were harmed as a result of medical negligence in Oregon or in another U.S. state, you should promptly find an Oregon medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Sunday, July 16th, 2017 at 5:25 am. Both comments and pings are currently closed.

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