Concienne v. Asante

Under ORS 12.110(4), “a medical malpractice action accrues ‘when the injury is first discovered or in the exercise of reasonable care should have been discovered.’” Kastle v. Salem Hospital, 284 Or App 342, 347, 392 P3d 374 (2017).

Petitioner appealed from a grant of summary judgment. Petitioner assigned error to the trial court’s determination that Petitioner’s failure to schedule a potential medical malpractice claim as an asset in his Chapter 7 bankruptcy judicially estopped him from later asserting that claim. On appeal, Petitioner argued that the claim had not accrued to trigger the statute of limitations, therefore, the Petitioner was not required to list the potential medical malpractice claim as an asset of the estate. On appeal, Respondent renewed its argument that Petitioner lacked standing as a party in interest, because the bankruptcy estate owned the medical malpractice claim. Under ORS 12.110(4), “a medical malpractice action accrues ‘when the injury is first discovered or in the exercise of reasonable care should have been discovered.’” Kastle v. Salem Hospital, 284 Or App 342, 347, 392 P3d 374 (2017). The Court determined that the medical malpractice claim was owned by the bankruptcy estate, because Petitioner discovered his injury prior to filing his Chapter 7 bankruptcy. Additionally, under 11 USC § 554(d) any unscheduled assets remain property of the estate until disposed of or abandoned by the trustee of the bankruptcy estate, thus Petitioner cannot be a party in interest in the medical malpractice claim. Vacated and remanded.