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Oregon Negligent Infliction of Emotional Distress Claim Tolled By Expert Testimony Declaration On Plaintiff’s Mental State.

Posted by Grant M. Elder | Apr 15, 2021 | 0 Comments

Estate of Jacob Thompson, et al. v. Portland Adventist Medical Center, 309 Or App 118 (2021)
for the estate of her son, Jacob Thompson, and Portland Adventist Medical Center (“Portland Adventist”). In the early morning of August 6, 2012, four-day-old Jacob Thompson accidentally suffocated under his mother's breast while sleeping in the same bed at the hospital maternity ward.
Under Oregon Law (ORS. 12.160(3)), if a person has a “disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know, the status of limitations for commencing the action is tolled for so long as the person has [that condition].” To toll the limitations period, a plaintiff's mental condition must have been severe enough to prevent her from understanding that the defendant had harmed her.  
Almost five years later, Mrs. Thompson brought a claim against the hospital and an unknown nurse for negligence and negligent infliction of emotional distress (NIED). This claim was amended one month later to include an additional NIED claim from Jacob's father. Before trial, Portland Adventist filed and was granted summary judgment on all three claims arguing that they were barred by the applicable status of limitations. On appeal, Mrs. Thompson argued that a genuine issue still existed as to whether the limitations period was tolled by ORS 12.160(3) due to her mental state. Portland Adventist argued that, as early as April 2013, Mrs. Thompson's therapy notes indicated that she expressed anger towards both the unknown nurse and hospital for causing her son's death. Mrs. Thompson argued those notes referred to her reaching the more generalized anger stage in her grieving process rather than showing specific feelings towards defendants. She also submitted a declaration stating that she had retained an expert qualified to testify about the impacts that PTSD, depressive disorders, bereavement, and cognitive impairments have on the mental processes of an individual in Mrs. Thompson's position. 
Although it was a close call, the Court held that Mrs. Thompson's therapy notes combined with her expert testimony declaration provided enough evidence to raise a triable question of fact as to whether she had a disabling mental condition that tolled the limitations period under ORS 12.160(3). However, the Court agreed with the trial court granting summary judgment on the estate and Mr. Thompson's claims. Mrs. Thompson's mental condition, the Court reasoned, could not have tolled the estate's claim because her personal representative appointment came after the applicable three-year limitations period had already lapsed. Similarly, Mr. Thompson's NIED claim was barred by the applicable five-year statute of ultimate repose. 

About the Author

Grant M. Elder

Associate Grant Elder is an associate attorney at Scheer.Law's Portland office. Grant's civil litigation practice focuses on defending businesses and individuals against a variety of personal injury, products liability, construction defect, and property damage claims. Before joining Scheer.Law, ...


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