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Zabriskie v. Lowengart

Summarized by: 

Date Filed: 09-26-2012
Case #: A148740
Hadlock, J. for the Court; Ortega, P.J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/Publications/A148740.pdf

Civil Procedure: Under ORS 12.110(4), the statute of limitations period begins to run when a plaintiff should have discovered an injury that arose from the allegedly negligent medical care.

Plaintiff (Zabriskie) appealed the trial court's grant of summary judgment to Lowengart, the defendant doctor. Lowengart alleged that Zabriskie filed his complaint outside of the two-year statute of limitations period set forth in ORS 12.110(4). An injury is a legally cognizable harm composed of three elements: (1) harm; (2) causation; and (3) tortious conduct. The statute of limitations begins to run when a plaintiff, exercising reasonable care, would be aware of a substantial possibility that those three elements exist. Unless the only conclusion a jury could reach is that a plaintiff knew of the facts, the application of the discovery rule is a question of fact to be determined by the jury. Because the evidence does not foreclose the possibility that Zabriskie should have known Lowengart caused a legally cognizable injury on the day of treatment, a jury could have found that Zabriskie only discovered that Lowengart acted negligently when a second doctor informed him of spinal instability. Thus, the trial court erred in finding that the statute of limitations began to run on the date Lowengart performed a chiropractic procedure on Zabriskie because there was a genuine issue of fact as to the date the statute of limitations began. Reversed and remanded.