S054731, Opinion — Christiansen v. Providence Health System

445
Argued and submitted January 9, decision of Court of Appeals and judgment of
circuit court affirmed :Vfay 8, 2008
Kelly CHRISTIANSEN,
Conservator for James Carrier,
a Minor,
Petitioner on Review,
u.
PROVIDENCE HEALTH SYSTEM OF
OREGON CORPORATION,
dba St. Vincent Hospital & Medical Center,
an Oregon business;
and Randi R. Ledbetter, M.D . ,
Respondents on Review.
(CC 0301-00634; CA A122603; SC 8054731)
184 P3d 1 12 1

446 Christiansen v. Providence Health System
CJS, Limitations ofActions § 173.
On review from the Court of Appeals . *
Kathryn H . Clarke, Portland, argued the cause for
petitioner on review. With her on the briefs were Brian S .
Campf, Portland, and John E. Uffelman, Beaverton.
Lindsey H. Hughes, Keating, Jones, Bildstein & Hughes,
Portland, argued the cause and filed the briefs for respondent
on review Randi R. Ledbetter, M.D. Michael T. Stone,
Brisbee & Stockton, Hillsboro, argued the cause and filed the
briefs for respondent on review Providence Health System of
Oregon.
Maureen Leonard, Portland, Robert K. Udziela,
Beaverton, and David F. Sugerman, Portland, filed briefs on
behalf of amicus curiae Oregon Trial Lawyers Association.
Appeal from Multnomah County Circuit Court, Nely L. Johnson, Judge. 210
Or App 290, 150 P3d 50 (2006).

Cite as 344 Or 445 447
Thomas E. Cooney and David J. Madigan, Cooney &
Crew, LLP, Lake Oswego, filed a brief on behalf of amicus
curiae Oregon Medical Association.
C. Robert Steringer, and Jona J. Maukonen, Harrang
Long Gary Rudnick PC, Portland, filed a brief on behalf of
amicus curiae Oregon Association of Hospitals and Health
Systems.
Marjorie A. Speirs, Portland, filed a brief on behalf of
amicus curiae Oregon Association of Defense Counsel.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
DE MUNIZ, C . J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
** Linder, J., did not participate in the consideration or decision of this case.

448 Christiansen v. Providence Health System
DE MUNIZ, C. J.
Petitioner Kelly Christiansen (plaintiff below), con
servator for her minor son, seeks review of a trial court judg
ment dismissing her medical negligence complaint against
defendants on the ground that the action was barred by the
five-year limitation period established in ORS 1 2 . 1 10(4).
Plaintiff argues that the application of that statute to her
son's case violates the remedy requirement set forth in Arti
cle I, section 10, of the Oregon C onstitution. The Court of
Appeals affirmed the trial court, concluding that plaintiffs
claim was not one that was cognizable at common law when
the Oregon Constitution was adopted. Therefore, the appli
cation of the five-year limitation period provided for in ORS
12.1 10(4) to bar plaintiffs claim was not prohibited by Article
I, section 10. Christiansen v. Providence Health System, 2 10
Or App 290, 302, 150 P3d 50 (2006). We allowed plaintiffs
petition for review and now affirm the decision of the C ourt of
Appeals, albeit on different grounds.
Because this case i s before this court o n a motion to
dismiss, we assume the truth of all well-pleaded facts alleged
in the complaint and accord plaintiff, as the nonmoving
party, the benefit of all favorable inferences that may be
drawn from those facts. Bradbury v. Teacher Standards and
Practices Comm. , 328 Or 391, 393, 977 P2d 1 15 3 ( 1999). The
complaint alleges that defendants negligently caused inju
ries to plaintiffs son while plaintiff was in labor in March
1 994. Among other things, plaintiff alleged that defendants,
a hospital and an obstetrician, were negligent when they
failed to recognize signs offetal distress and delayed perform
ing a caesarean section delivery of the child. At delivery, the
child was "floppy and unresponsive," "required neonatal
resuscitation [,] and suffered his first seizure within eight
hours of his birth." He was stabilized and transferred to
another hospital, which discharged him approximately a
week later. At that time, " [his] physicians stated that a cra
nial ultrasound and CT [computed tomography] Scan of the
brain did not show any evidence of abnormality. An EEG
[electroencephalogram] taken then was mildly abnormal, but
not specific." At two and three months after his birth,
Dr. James R. Schimschock of the Child Neurology Clinic

Cite as 344 Or 445 (2008) 	449
informed plaintiff that the child was developing normally
and gave him a good prognosis. In May 1999, Schimschock
noted that the child had seemed to make his motor land
marks at appropriate intervals, but diagnosed him with
mixed developmental disorder, developmental speech or lan
guage disorder, and partial epilepsy. Schimschock referred
the child to Dr. E dwards, who then noted that the child "was
beginning to show signs of neurological deficits , relating to an
anoxic event in-utero."
Plaintiff filed this civil action against defendants in
January 2003, over eight years after her son's birth. In
response, defendants filed motions to dismiss pursuant to
ORCP 21 A(9).1 Defendants asserted that, because plaintiff
alleged that she had suspected negligence six to eight months
after the delivery, she had or should have discovered the
child's injuries at or near that time and, therefore, her com
plaint was barred by the two-year limitation period in ORS
12. 1 10(4). Defendants also asserted that, because the action
was filed more than five years after the medical treatment
alleged to have caused the child's injuries, the action also was
barred by the five-year limitation period provided in ORS
12. 1 10(4). That statute states, in part:
"An action to recover damages for inj uries 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 ofthe treatment, omission or operation upon which
the action is based[.]"
(Emphasis added.) In turn, ORS 12. 160 (2005)2 provided, in
part:
1 ORCP 21 A(9) provides that a defonse may be made by a motion to dismiss if
"the pleading shows that the action has not been commenced within the time lim
ited by statute."
The legislature amended ORS 12.160 in 2007. Or Laws 2007, ch 285, § l.
Because that amendment applies only to causes of action arising on or after the
effective date of the act, January 1, 2008, we refer to ORS 12. 160 (2005) throughout
this opinion.

450 Christiansen v. Providence Health System
"If, at the time the cause of action accrues, any person enti
tled to bring an action mentioned in ORS * * * 12.070 to
12.250 * * * is within the age of 18 years or insane, the time
of such disability shall not be a part of the time limited for
the commencement of the action; but the period within
which the action shall be brought shall not be extended
more than five years by any such disability, nor shall it be
extended in any case longer than one year after such dis
ability ceases."
Plaintiff responded that a "mere suspicion" of harm
is insufficient to trigger the two-year limitation period and
that the child's physicians failed to discern any injury until
her son was five years old. She also argued that, as applied to
this case, the five-year limitation period in ORS 1 2 . 1 10(4)
violates the remedy requirement in Article I, section 10, of
the Oregon Constitution3 because, at the time that the
Oregon Constitution was adopted, a statute was in place that
tolled the limitation period for minors until they reached the
age of majority. According to plaintiff, the Remedy Clause
preserves that period of tolling for minors and, therefore, the
application of a five-year limitation period has the effect of
denying the child a remedy in violation of Article I, section
10.
The trial court dismissed plaintiffs action with prej
udice, concluding that the five-year limitation period in ORS
12. 1 10(4) does not violate the Remedy Clause. As noted, the
Court of Appeals affirmed. According to that court, plaintiff
did not discover the child's injuries until May 1999.
Christiansen, 2 1 0 Or App at 294-95. However, the Court of
Appeals determined that, because there was no cognizable
common-law claim for prenatal injuries to a child at the time
that the constitution was adopted, the legislative choice
expressed in ORS 1 2 . 1 10( 4) to extinguish a minor's claim five
years from the date of the medical treatment did not violate
the Remedy Clause. Id. at 302.
3 Article I, section 10, provides, in part:
"[E)very man shall have remedy by due course oflaw for injury done him in his
person, property or reputation."

Cite as 344 Or
On review, plaintiffargues that the Court ofAppeals
mistakenly concluded that there was no recognized common
law claim for prenatal injuries when the Oregon Constitution
was adopted in 1857. She asserts that, ( 1 ) historically,
unborn children had rights whenever it was for their benefit,
and (2) the common law recognized claims for medical negli
gence. According to plaintiff, it would have been consistent
with the common law to permit a child to recover for an injury
sustained in utero, and that the Court of Appeals decision
"ignores the basic principles of, and flexibility of the common
law which courts embraced long before 1857." Next, she
argues that " [m]inority has always been a recognized legal
disability that extends the time available for commencing an
action." Plaintiff also points out that, in territorial Oregon,
all statute of limitation provisions were tolled for the dura
tion of minority. According to plaintiff, the five-year limita
tion period provided for in ORS 12.1 10(4) partially strips
away protection for minors that has existed since before the
Oregon Constitution was adopted. Thus, plaintiff argues
that, by "[w] ithholding consideration of [a] disability the law
has always recognized," the legislature has deprived her son
of a remedy in violation of Article I, section 10.
Plaintiff brought this claim as conservator for her
son, and the claim for medical negligence in this case is,
therefore, the child's claim. See Mallison v. Pomeroy, 205 Or
690, 291 P2d 225 ( 1955) (child plaintiff, who suffered injuries
in womb of mother, who was six months' pregnant at the time
of accident, had claim for the prenatal injuries against defen
dant). The parties, however, assume that mother's knowl
edge of her son's injury is relevant for purposes of the discov
ery rule and that mother was responsible for commencing her
son's action within the time limited by law. The parties do not
make any distinction between information that mother may
have learned in her capacity as conservator and information
she may have learned before her legal designation as conser
vator. However, because of the legal construct under which
the parties have argued this case, we assume, for purposes of
the two-year limitation period, that mother's knowledge is
imputed to her son.
The first sentence of ORS 12. 1 10(4) requires plaintiff
to file her action within two years of the date that she either

452 Christiansen v. Providence Health System
discovered or should have discovered the injury to her son.
ORS 1 2 . 1 60 extends that two-year period for an additional
five years during the child's minority. We agree with the
Court of Appeals that the first sentence of ORS 12 . 1 10(4) pro
vides no basis for dismissing plaintiffs complaint. Although
plaintiff was "generally" aware of the facts surrounding her
son's birth, a CT scan of the child's brain at that time "did not
show any evidence of abnormality," and the child appeared to
be developing normally. It was not until Schimschock's diag
nosis in May 1999 that plaintiff learned of the permanent
injuries. Therefore, the two-year limitation period or the
period of extension provided by ORS 12. 160, did not begin to
run until that time.
The second sentence of ORS 12 . 1 10(4) presents a dif
ferent question, however. Under the second sentence of ORS
1 2 . 1 10(4), plaintiff had a maximum of five years from the
date of the medical treatment, i.e. , until March 1999, in
which to bring the child's claim against defendants. That
five-year limitation period applies "notwithstanding the pro
visions of ORS 12. 160," therefore the fact that plaintiffs son
was a minor did not toll that five-year limitation period.
Thus, plaintiffs claim is untimely under that statutory five
year limitation period. As plaintiff has framed it, the remain
ing question before us is whether imposing that limitation on
a minor's claim and thus limiting the effect of the disability
law for minors that existed before statehood violates Article
I, section 10, of the Oregon Constitution. As noted, the Court
of Appeals held that it did not, because a claim for prenatal
injuries was not cognizable when the Oregon Constitution
was adopted. We need not decide, however, whether an
injury that occurs during delivery constitutes a claim for pre
natal injuries or whether, if it does, such a claim was recog
nized when the Oregon Constitution was adopted. Even if
such a claim was recognized before statehood, the question is
whether Article I, section 10, prevents the legislature from
imposing periods of limitation on the claims of minors by
altering a prestatehood tolling provision for minors. We turn
to that issue.
In Smothers u. Gresham Transfer, Inc., 332 Or 83,
1 1 7 , 23 P3d 333 (2001), this court stated that "the purpose of

Cite as 344 Or 445
the remedy clause in Article I, section 10, is to protect abso
lute common-law rights respecting person, property, and rep
utation by guaranteeing the availability of a remedy in the
event of an inj ury." In Smothers, the court adopted the follow
ing analysis to determine whether a challenged statute
meets the requirements of the Remedy Clause:
" [T]he first question is whether the plaintiff has alleged an
injury to one of the absolute rights that Article I, section 10
protects. Stated differently, when the drafters wrote the
Oregon Constitution in 1857, did the common law of Oregon
recognize a cause of action for the alleged injury? If the
answer to that question is yes, and if the legislature has
abolished the common-law cause of action for injury to
rights that are protected by the remedy clause, then the sec
ond question is whether it has provided a constitutionally
adequate substitute remedy for the common-law cause of
action for that injury."
Id. at 124.
Here, plaintiff does not contend that the Remedy
Clause prohibits the legislature from enacting statutes that
limit the period in which a claim may be commenced.4
Indeed, it is beyond dispute that, before the adoption of the
Oregon Constitution, this court enforced statutes of limita
tion. See, e.g. , Baldro v. Tolmie, 1 Or 176 ( 1855) (holding valid
five-year statute of limitation adopted by territorial govern
ment in 1844 and recognized by territorial government on
August 14, 1848); McLaughlin v. Hoover, 1 Or 3 1 ( 1853)
(upholding statutes of limitation adopted in 1849 and 1853).
The provisional and territorial governments each enacted
statutes of limitation. On January 6, 1854, the Legislative
Assembly of the Territory of Oregon adopted an Act for the
Limitation of Actions, which set out the time periods within
which actions must be brought. Statutes of Oregon 1854, Act
for the Limitation ofActions, ch 1, pp 170-73. Five years after
the Oregon Constitution was adopted, in 1862, the legisla
ture passed an act to provide a code of civil procedure. That
act again set out various statutes of limitation, similar to
those provided in the 1854 act. General Laws of Oregon,
4 Plaintiff concedes that a statute oflimitation does not deny a plaintiff a rem
edy if the claim is brought within the time period specified.

454 Christiansen v. Providence Health System
Civ Code, ch I, title II, pp 140-44 (Deady 1845-1864). Statutes
of limitation were familiar to the drafters of the Oregon
Constitution, and there is no basis for us to assume that the
Remedy Clause was intended to give plaintiffs a right to
commence actions notwithstanding the terms of any then
existing statutes oflimitation. In the absence of any case law
or other authority to the contrary, we conclude that the leg
islature has authority, consistent with Article I, section 10, to
enact reasonable periods of limitation in which an action
must be commenced.
Plaintiff, however, does not contest that the legisla
ture has the authority to modify statutes of limitation-in
fact, she concedes that the legislature had the authority to
lower the age of majority from 2 1 to 18, as it did in 1973 when
it amended ORS 109.5 10.5 She asserts that, when the Oregon
Constitution was adopted, a statute preserved a minor's right
to bring a claim throughout the period of minority. Statutes
of Oregon 1854, Act for the Limitation ofActions , ch 1, § 15,
p 172.6 Consequently, she argues that, the Remedy Clause
protects that "right" from legislative incumbrance. In support
of that argument, plaintiff observes that
"Children are physically and mentally as well as legally
incapable of protecting their own rights or assisting their
attorneys or other representatives. They must of necessity
5 ORS 109.510 provides:
"Except as provided in ORS 109.520, in this state any person shall be
deemed to have arrived at majority at the age of 18 years, and thereafter shall:
"(1) Have control of the person's own actions and business; and
"\2) Have all the rights and be subject to all the liabilities of a citizen offull
age."
That statute provided, in part:
"If a person entitled to bring an action mentioned in this chapter, except
for a penalty or forfeiture, or against a sheriff or other officer for an escape, be,
at the time the cause of action accrued, either:
"1. Within the age of twenty-one years; or
"2. Insane: or
"3. Imprisoned on a criminal charge, or in execution under the sentence of
a criminal court for a term less than his natural life; or
"4. A married woman;
"The time of such disability shall not be a part of the time limited for the
commencement of the action."

Cite as 344 Or 445 (2008) 455
rely on the assistance of adults, and that assistance may be
made much more difficult by the limitations of childhood.
The very nature of human growth and development may
obfuscate the injury to a child and even make it impercep
tible until the claim has expired-as it did in this case."
We do not quarrel with plaintiffs observations
regarding the legal and factual impediments associated with
the medical negligence claims of children. We agree with
plaintiff that the imposition of a five-year limitation period
during minority can lead to harsh consequences in some
cases. In Oregon, a child has no standing to bring an action
before attaining the age of majority, ORCP 27 A,7 and, except
in limited cases, a minor can file an action in court only
through a conservator or guardian ad litem. In some cases, a
minor may not even have a parent or guardian to file a claim.
Moreover, a child, or the child's parents or guardian, may not
be aware that the child has been injured. The injury may not
manifest itself for a long period of time, or the child may not
be able to articulate physical symptoms. Thus, by the time a
child turns 18 and has standing to bring his or her own claim,
the period in which to bring the claim may have long passed.
For the reasons we have just described, plaintiff
argues that the legislature, by imposing the same limitation
period on minors that it imposes on adults, has indirectly
abolished a common-law right, in contravention of Smothers.
She submits that "it is an unconstitutional limitation where
the legislature strips away the added protection the law has
given to minors since the founding of the State."
As we have previously identified, however, statutes
providing for the tolling of limitation periods due to disabil
ity, such as minority, existed before the Oregon Constitution
was adopted, and more were adopted soon afterward. Tolling
provisions that recognize a disability are statutes; they are
not components of the constitution. There is simply no
7 ORCP 27 A provides, in part:
"When a minor, who has a conservator of such minor's estate or a guardian, is
a party to any action, such minor shall appear by the conservator or guardian
as may be appropriate or, if the court so orders, by a guardian ad litem
appointed by the court in which the action is brought. If the minor does not
have a conservator of such minor's estate or a guardian, the minor shall appear
by a guardian ad !item appointed by the court."

456 Christiansen v. Providence Health System
authority to support plaintiff's contention that Oregon's con
stitutional framers intended the Remedy Clause to prevent
legislative alteration of the 1854 tolling statute for minority.
ORS 12. 160 suspends the statute of limitations for
the claims of minors. ORS 12. 1 10(4) limits that suspension to
five years from the date of medical treatment. The Remedy
Clause creates no barriers to the enactment of a statute that
modifies the disability protection that minors enjoyed before
1859. Consequently, the prestatehood disability law does not
protect mother from the five-year limitation in ORS
12. 110(4). That statute bars her claim on behalf of her son.
The decision of the Court of Appeals and the judg
ment of the circuit court are affirmed.