"(c) In delaying cesarean section in the presence of signs and symptoms of fetal distress and of significant bleeding caused by placenta previa "(b) In failing to monitor plaintiff's condition prior to birth with a continuous fetal heart monitor "(a) In performing amniocentesis without the benefit of ultrasound equipment, thereby puncturing the umbilical cord "Defendants Alsever and Thomas, acting in concert, were negligent on May 3 and May 4, 1979, in one or more of the following particulars: "(b) In failing to mandate strict bed rest for plaintiff's mother. "(a) In failing to perform an ultrasound between Februand May 2, 1979, and thereby to diagnose placenta previa "Defendants Alsever and Sproed, acting in concert, were negligent from Februthrough May 2, 1979, in one or more of the following particulars: "(d) In failing to have available, at the time of Ronald's birth and during the first 24 hours of life, the person most qualified to resuscitate a jeopardized infant. "(c) In failing to provide a continuous fetal heart monitor machine to monitor the labor of plaintiff's mother and thereby assess fetal distress "(b) In having rules, regulations, and procedures which permitted defendant Alsever to perform an amniocentesis without benefit of ultrasound analysis "(a) In failing to have sonography equipment located in the maternity ward, thereby necessitating the transfer by ambulance of pregnant and laboring patients for ultrasound analysis, or, in the alternative, the performance of diagnostic procedures without the benefit of sonography equipment, as a result of which an amniocentesis by defendant Alsever caused a puncture of plaintiff's umbilical cord "Defendant hospital was negligent on May 3 and May 4, 1979, in one or more of the following particulars: Plaintiff's allegations of negligence were: The alleged result of defendants' alleged negligence was that plaintiff suffered developmental delay, brain damage, cerebral palsy, paraplegia and learning disabilities. The other defendants had no further involvement *307 in either patient's care after they were discharged from the hospital. Holly continued to provide pediatric care to plaintiff until May, 1981, and Alsever continued as a physician for plaintiff's mother until 1984. Thereafter, at the request of the two obstetricians and the hospital, defendants Holly and Lace, who are pediatricians on the hospital's medical staff, assisted in plaintiff's neonatal care through the time of his discharge from the hospital on May 18. Alsever and another obstetrician, defendant Thomas, attended plaintiff's mother through the time of his delivery by cesarean section. Sproed and Alsever both participated in her care until her admission to the hospital on May 3. He referred her to defendant Alsever, an obstetrician, in February, 1979. His mother first consulted defendant Sproed, a family practitioner, in November, 1978. Plaintiff was born at the hospital on May 4, 1979. The principal issue is whether the "misleading representations" which plaintiff alleges that defendants made tolled the statute as to his claims against some or all of them. 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." (Emphasis supplied.) "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. Plaintiff in this medical malpractice action appeals from a judgment for the defendant hospital and physicians which was entered after the trial court granted defendants' motions to dismiss on the ground that the action was brought after the five-year qualified statute of ultimate repose had run. Thompson and Wood Tatum Mosser Brooke & Landis, Portland.īefore RICHARDSON, P.J., NEWMAN, J., and RIGGS, J. Kim Jefferies, Portland, argued the cause, for respondents W.L. With him on the brief was Hallmark, Keating & Abbott, P.C., Portland. Berg, Portland, argued the cause, for respondent Robert Sproed, M.D. Miller and Schwabe, Williamson & Wyatt, Portland.Įmil R. Carmack, Portland, argued the cause, for respondents John Alsever, M.D., and J. Bauer, Salem, argued the cause, for respondent Salem Hospital. Clarke, Portland, argued the cause, for appellant. Reconsideration Denied November 25, 1988. Ronald Marvin JONES, by and through His Guardian Ad Litem, Joan A.
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