Docket: 84-4508-J-2; CA A47787; 84-4438-J-2; CA A47786
Court: Court of Appeals of Oregon; April 5, 1989; Oregon; State Appellate Court
Plaintiff appeals a summary judgment favoring defendant Ptacek, claiming her actions were time-barred under the Statute of Limitations. This is the second appeal regarding these consolidated actions. The first appeal reversed a trial court's dismissal based on an earlier complaint, clarifying that a trial court should consider only the current complaint for such rulings. On remand, the trial court granted summary judgment for Ptacek again on the same basis, which is now reversed.
The original complaint alleged negligence against doctors Ptacek, Kaufman, and Sacks, but the amended complaint removed Sacks and the hospital, focusing on Kaufman and Ptacek. Plaintiff underwent a hysterectomy in 1980, followed by radiation and chemotherapy treatments, which she later learned caused permanent organ damage. She filed her complaint on December 6, 1984, alleging Ptacek's negligence in failing to inform her about the risks associated with her treatments.
The key legal question is whether plaintiff discovered or should have discovered her cause of action against Ptacek before December 6, 1984. The court examines if plaintiff was aware of facts that would lead a reasonable person to conclude that Ptacek's actions were negligent. The earlier complaint indicated that she had received negligent advice regarding her tumors being inoperable. However, the amended complaint does not attribute this negligent advice to Ptacek, and the summary judgment record does not support the claim that Ptacek provided the allegedly negligent advice.
Plaintiff was not aware that the radiation and chemotherapy treatments were not beneficial until December 1982, when she learned about damage to her internal organs, making her December 6, 1984, complaint timely. The trial court incorrectly granted summary judgment based on the Statute of Limitations. Ptacek sought summary judgment by asserting his treatment met the standard of care for physicians in radiation therapy, supported by his expert affidavit. A defendant can use their own expert opinion to establish the standard of care, provided they lay a foundation for their expertise and knowledge. Ptacek's affidavit was deemed appropriate evidence. To counter Ptacek's claims, the plaintiff provided affidavits: one from her husband stating Ptacek did not inform her about risks to her organs, and another from her attorney citing Ptacek's inability to recall specific advice given. The attorney also mentioned an expert witness who would testify that radiation therapy causes delayed tissue damage, which the plaintiff experienced. Ptacek's affidavit claimed he adequately described the risks of treatment effects and long-term damage, asserting he met the standard of care, despite his deposition indicating uncertainty about the specifics of his advice.
An attorney's affidavit claims the presence of an expert witness to testify that the plaintiff experienced specific effects. The plaintiffs' affidavits challenge Ptacek regarding whether any advice was provided, and while they do not explicitly state that advising on risks to bodily organs or long-term side effects is necessary for reasonable professional care, it can be inferred from Ptacek's affidavit that such advice is essential to meet the standard of care. Disputed issues of material fact include whether advice was required, whether it was given, and its adequacy, leading to the conclusion that the trial court improperly granted summary judgment for the defendant. The case, initiated by Maureen O'Gara for medical malpractice and her husband James O'Gara for loss of consortium, continued after Maureen's death with James as the personal representative of her estate. The initial appeal included several defendants, and the trial court issued a summary judgment for Sacks on February 3, 1988, followed by a dismissal for another defendant, Walters, on February 29, 1988.
