Smith v. OHSU Hospital and CLinic

ORS 30.275(9) does not bar application of ORS 12.160 (2005) to OTCA claims, because ORS 12.160 does not provide a limitation on the commencement of an action but instead provides for tolling the time allowed for the commencement of an action.

Plaintiff appealed the trial court's summary judgment stating that Plaintiff had failed to timely file her claim. The trial court agreed with Defendant that there was an overwhelming amount evidence to prove that Plaintiff knew of the negligence, and that the two year statute of limitation applied in this case. Plaintiff argued on appeal that she did not know of the negligence until 2009, allowing an amended version of the statute to control. However, the Court concluded that no reasonable fact finder could find the negligence was discovered after 2007. However, the Court concluded that the statute of limitation was tolled because Plaintiff's cause of action fell under ORS 12.110(4), which allowed for the time limited to be tolled for five years when a person is under 18 years of age. The Court concluded this despite Defendants argument that ORS 30.275(9) was controlling. Reverse and Remanded.