## Facts

- Timothy M. Gaston, a partial quadriplegic with use of only his left arm, underwent surgery in March 1987 performed by William R. Parsons, M.D. (and others) to address muscle spasticity.
- After surgery, Gaston’s left arm became numb and nonfunctional.
- Parsons told Gaston the postoperative problem was temporary and might last six months to two years.
- Gaston did not regain function within that period.
- In November 1990, Gaston sued for (1) lack of informed consent and (2) negligent performance of the surgery.
- Defendants moved for summary judgment, asserting the two-year medical malpractice limitations period barred both claims.

## Issues

1. When does the two-year limitations period for medical negligence under ORS 12.110(4) begin to run under the discovery rule?
2. On this record, could a factfinder determine that Gaston did not know and should not reasonably have known of a substantial possibility of negligent surgery more than two years before filing?
3. Was the informed-consent claim time-barred because the operative facts were known or knowable at the time of surgery?

## Decision

- The Oregon Supreme Court affirmed the Court of Appeals’ disposition, but on different grounds.
- Summary judgment for defendants was affirmed as to the informed-consent claim because it was untimely.
- Summary judgment for defendants was reversed as to the negligent-surgery claim because a jury could find the claim was filed within two years of discovery.
- The case was remanded for further proceedings on the negligent-surgery claim.

## Legal Principles

- Under ORS 12.110(4), the limitations period begins when the plaintiff knows or, using reasonable care, should know facts that would make a reasonable person aware of a substantial possibility that:
  - the plaintiff was harmed,
  - the harm was caused by the defendant, and
  - the defendant’s conduct was tortious (negligent), not merely an adverse outcome.
- Awareness of an injury alone does not necessarily start the limitations period when the injury could reasonably be viewed as a non-negligent complication.
- Physician reassurances that a condition is expected or temporary can bear on whether a reasonable patient should have recognized a substantial possibility of negligence; in such circumstances, discovery often presents a jury question.
- For informed-consent claims, the limitations period generally runs from when the patient knew or should have known what information was provided or withheld before the procedure.

## Conclusion

The court held that medical-negligence discovery requires knowledge (actual or imputed) of a substantial possibility of negligent causation; because a jury could find Gaston reasonably relied on postoperative reassurances, his negligent-surgery claim could be timely, while his informed-consent claim was barred because its factual basis was apparent at the time of surgery.


Gaston v. Parsons, 864 P.2d 1319 (Or. 1994)