Legal Question in Medical Malpractice in Oregon
I need to know if a failure to diagnose case can use the statute of repose versus limitations.
Back in 2003 I asked Standard Insurance to increase my policy to $400K and so they did a blood test to determine insurability. I was rejected based upon possible cardiac risk or "elevated liver enzymes and blood lipids".
Later on my family became clients to a naturopath for our autistic son. So, on 1/17/05 I asked him if he could treat me so in the future I could pass the insurance blood test and he agreed to take me on. On 3/1/05 he charts mention possible cardiac issues. The last time he saw me was the month before I had to get my family doctor to run a stress test which I failed and required a quadruple bypass which was June 2006.
A few months after the bypass I started experiencing major depression or PTSD which brought on sleep apnea - so I was out of commission for a while.
Finally, Jan 2010 I was diagnosed with sleep apnea and prescribed a CPAP. Shortly thereafter, I asked the naturopath for a copy of his charts to research what went wrong. I have that copy and it clearly states in his last prescription to me that if no improvement then he would refer me to a cardiologist. He wasted 18 months trying to treat my heart symptoms before I finally had the family doctor take over because the chest pains were that much worse.
The bypass has reduced the quality of my life and other medical issues have surfaced relating to the heart disease. I feel the naturopath should not take people's money and misrepresent his ability to treat heart disease when in fact during the 18 months I trusted him I probably got much worse. I believe there is a failure to diagnose case.
1 Answer from Attorneys
The applicable statute states
12.110 Actions for certain injuries to person not arising on contract; action for overtime or premium pay; action for professional malpractice; effect of fraud or deceit; action for injuries to person arising from nuclear incident.
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(4) An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered.
The omission of which you complain occurred during January 2005 - June 2006. The statute requires that you file suit " within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered." The naturopath would argue that you knew about the injury in June 2006 and therefore should have filed suit against him by June 2008.
I do not handle cases like this, but the law firm of Kafoury McDougal in Portland does. You can reach them at 503-224-2647 or [email protected]. They provide an initial consultation visit for you at no charge, and they usually take cases on a "contingency" basis, which means that you do not have to pay them, unless they succeed in obtaining money for you from the entity that harmed you.
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