Oregon's Medical Malpractice Statute of Limitations

Deadlines matter in a medical malpractice case. A claim filed too late can be dismissed by an Oregon court no matter how strong it is. The law that sets these deadlines is called a statute of limitations. This article explains the main deadlines in Oregon medical malpractice law, where they come from, and a special rule that applies when the provider works for the government.

The Two-Year Discovery Rule

In Oregon, most medical malpractice claims must be filed within two years. But the clock does not always start on the day of the treatment. Under ORS 12.110(4), the two years run from the date the injury "is first discovered or in the exercise of reasonable care should have been discovered."¹ Under Gaston v. Parsons, 318 Or 247 (1994), "injury" in ORS 12.110(4) "consists of three elements: (1) harm; (2) causation; and (3) tortious conduct."² The same opinion holds that the period "begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists."² That point can come later than the day a patient first notices a problem.

This is called the discovery rule. A patient does not always know right away that a provider was negligent. Some injuries take months or years to show up. The discovery rule gives the patient two years from the point when they knew, or reasonably should have known, enough to see a substantial possibility that they were harmed, that the care caused the harm, and that the care was negligent.

Courts look at what a reasonable person would have known. The deadline can start before a patient is completely certain something went wrong. Gaston states that actual knowledge that each element is present is not required.²

The Five-Year Outer Limit

The discovery rule has a ceiling. ORS 12.110(4) also says an action must begin "within five years from the date of the treatment, omission or operation upon which the action is based …"¹, subject to the fraud exception described below.

Lawyers call this a statute of repose. It is a firm outer deadline. Even if a patient does not discover the injury until later, the five-year limit can end the claim. So a claim must usually be filed within two years of discovery and within five years of the treatment itself. Whichever period runs out first can control.

The Fraud Exception

There is an important exception to the five-year limit. Sometimes a provider hides a mistake or misleads the patient about what happened. ORS 12.110(4) addresses this. If no action was commenced within five years "because of fraud, deceit or misleading representation," the action may be commenced within two years from the date the fraud, deceit or misleading representation "is discovered or in the exercise of reasonable care should have been discovered."¹

In plain terms, when concealment is the reason no action was filed within five years, the deadline can shift to two years after the patient discovers, or reasonably should have discovered, the deception.

Special Rule for Public Hospitals and the Oregon Tort Claims Act

Some medical providers work for the government. This includes county hospitals, state clinics, and Oregon Health and Science University, or OHSU. When the provider is a public body, or an officer, employee or agent of one, the Oregon Tort Claims Act's own rules apply.

The most important rule is an early notice deadline. Under ORS 30.275, an action against a public body or one of its officers, employees or agents generally cannot be maintained unless notice of the claim is given. For all claims other than wrongful death, that notice is due "within 180 days after the alleged loss or injury," and for wrongful death claims the notice period is "within one year after the alleged loss or injury."³

This 180-day notice deadline is much shorter than the two-year filing deadline. Missing it can end a claim against a public provider even when the two-year period has not run out. The statute lists several ways to give proper notice, including formal written notice and actually starting a lawsuit within the deadline.

The Tort Claims Act also sets its own filing deadline. Under ORS 30.275(9), except as provided in ORS 12.120, 12.135 and 659A.875, but "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," an action against a public body or its officers, employees or agents "shall be commenced within two years after the alleged loss or injury."³

OHSU is a good example of why this matters. By statute, OHSU is treated as a public body under the Tort Claims Act. ORS 353.100 says the Tort Claims Act provisions "apply to Oregon Health and Science University under the same terms as they apply to public bodies other than the state."⁴ So care from an OHSU provider can trigger the 180-day notice rule.

Whether a provider is public or private is not always apparent from the care itself, and the answer determines which set of deadlines applies.

Why These Deadlines Are Easy to Miss

Medical malpractice deadlines are more complicated than a single date on a calendar. The discovery rule, the five-year outer limit, the fraud exception, and the public-body notice rules can all point to different dates. A short delay can matter.

If you are wondering how these deadlines apply to a specific situation, an Oregon attorney can review the facts and the timing. Huegli Law offers a free case review by phone.

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at 971-317-6436 for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.

Footnotes

1. ORS 12.110 — Action for professional malpractice. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩ ↩² ↩³

2. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994). https://static.case.law/or/318/cases/0247-01.json ↩ ↩² ↩³

3. ORS 30.275 — Notice of claim; time of notice; time of action. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩²

4. ORS 353.100 — Applicability of certain laws to university. https://www.oregonlegislature.gov/bills_laws/ors/ors353.html ↩