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Full Opinion
Timothy M. GASTON, Respondent on Review,
v.
William R. PARSONS, M.D., William E. Coit, M.D., Petitioners on Review, and
Good Samaritan Hospital and Medical Center, an Oregon corporation, Defendant.
Supreme Court of Oregon.
*1320 Janet M. Schroer, of Hoffman, Hart & Wagner, Portland, argued the cause on behalf of petitioners on review. With her on the petition for review was David C. Landis, of Wood, Tatum, Wonacott & Landis, Portland.
J. Michael Alexander, of Burt, Swanson, Lathen, Alexander & McCann, Salem, argued the cause and filed a response to the petition for review on behalf of respondent on review.
David F. Sugerman, of Paul & Sugerman, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.
William L. Hallmark, of Hallmark, Keating & Abbott, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Ass'n.
Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ., and PETERSON, Senior Judge, Justice pro tempore.
UNIS, Justice.
The issue in this case is when the statute of limitations begins to run in a medical negligence action. Plaintiff filed this action in November 1990, seeking damages for harm suffered as a result of defendants' alleged negligence in connection with a surgical procedure performed in March 1987. Plaintiff's action was based both on (1) defendants' failure to obtain plaintiff's informed consent and (2) defendants' negligent performance of the surgery.[1] Defendants[2] moved for summary judgment on the ground that plaintiff had failed to file the action within the two-year statute of limitations, ORS 12.110(4).[3] The trial court granted the motion and entered judgment for defendants. The Court of *1321 Appeals reversed, holding that the informed consent claim was barred, but that the negligent surgery claim was not barred because the statute of limitations did not start to run on that claim until plaintiff knew or should have known of defendants' negligence. Gaston v. Parsons, 117 Or. App. 555, 844 P.2d 941 (1993). We allowed defendants' petition for review.[4] We affirm the decision of the Court of Appeals on different grounds.
On review of a summary judgment, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Christensen v. Murphy, 296 Or. 610, 613, 678 P.2d 1210 (1984). In reviewing the trial court's ruling on a motion for summary judgment, we view the evidence and all reasonable inferences in the light most favorable to the non-moving party (plaintiff in this case). Stephens v. Bohlman, 314 Or. 344, 346-47, 838 P.2d 600 (1992).
Plaintiff was a partial quadriplegic whose only functioning limb was his left arm. Plaintiff sought medical treatment from defendants for muscle spasms in his lower body. Defendant Parsons (Parsons) suggested a procedure that involved a spinal injection of a chemical solution to deaden the nerves that were causing the muscle spasms. Before the surgery, Parsons informed plaintiff of certain risks to the procedure, but not of any risk of possible loss of function in plaintiff's arm. Defendants performed the procedure on March 12, 1987. After the surgery, plaintiff noticed that his left arm was numb and did not function. Parsons assured plaintiff that the loss of function in his left arm was temporary and that use of his arm would return in six months to two years.
Plaintiff did not recover the use of his left arm within two years of the surgery. Plaintiff filed this action on November 14, 1990, alleging that defendants were negligent both in failing to obtain plaintiff's informed consent before the surgery and in negligently performing the surgery. Defendants moved for summary judgment, asserting that plaintiff's claims were barred by the statute of limitations, ORS 12.110(4), because they were filed more than two years after plaintiff became aware that his left arm was numb and did not function.
ORS 12.110(4) requires actions for claims arising from medical treatment to 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."[5] We need only to determine if a genuine issue of material fact exists as to when plaintiff discovered or in the exercise of reasonable care should have discovered his "injury" as that word is used in ORS 12.110(4). We find that a genuine issue of fact does exist.
In interpreting a statute, we seek to give effect to the intent of the legislature. ORS 174.020. The first step of that process is to examine the text and the context of the provision itself and other related statutes. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). Context includes case law interpreting those statutes. See State v. Sullens, 314 Or. 436, 443, 839 P.2d 708 (1992) ("`When this court interprets a statute, that interpretation becomes a part of the statute as if written into it at the time of its enactment'") (quoting Walther v. *1322 SAIF, 312 Or. 147, 149, 817 P.2d 292 (1991)).
In examining the text and the context of ORS 12.110(4), we note that "injury" is not defined by statute or by case law. We also note that "injury" appears in other statutes of limitations. See ORS 12.110(1) (general tort); ORS 30.275(8) (tort claims against public bodies). This court has recognized that the discovery rule applies to each of those statutes. See Dowers Farms v. Lake County, 288 Or. 669, 681, 607 P.2d 1361 (1980) (ORS 30.275); U.S. Nat'l Bank v. Davies, 274 Or. 663, 668-69, 548 P.2d 966 (1976) (ORS 12.110(1)). This court's prior decisions indicate that the use of the word "injury" in statutes of limitations does not refer to injury in the ordinary sensethat is, physical harm. Instead, those decisions have recognized that discovery of "injury" is comprised of different components, some of which are harm, identity of the tortfeasor, and causation. See, e.g., Dowers Farms v. Lake County, supra, 288 Or. at 669, 607 P.2d 1361 (discovery of harm); Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980) (identity of the tortfeasor); Schiele v. Hobart Corporation, 284 Or. 483, 490, 587 P.2d 1010 (1978) (cause of harm).
In interpreting the text of a provision, we also consider "rules of construction that bear directly on the interpretation of the statutory provision in context." PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611, 859 P.2d 1143. One such well-established rule is that words in a statute that have a well-defined legal meaning are to be given that meaning in construing the statute. State v. Dumond, 270 Or. 854, 858, 530 P.2d 32 (1974); Cordon v. Gregg, 164 Or. 306, 311-12, 97 P.2d 732, 164 Or. 306, 101 P.2d 414 (1940). As used in ORS 12.110(4), "injury" is such a word. In the tort context, in which ORS 12.110(4) applies, "injury" is defined as the "invasion of any legally protected interest of another." Restatement (Second) Torts § 7(1) (1965). In other words, an "injury" is a legally cognizable harm.
The context of ORS 12.110 supports this interpretation of "injury." Another rule of construction that bears directly on how to read the text of the statute is the maxim ejusdem generis, which provides that where general words follow the enumeration of particular classes of things, the general words are to be construed as applicable to things of the same general nature or class. See State v. Brantley, 201 Or. 637, 645, 271 P.2d 668 (1954) (stating maxim). ORS 12.110(1) provides in part: "An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract * * * shall be commenced within two years." Applying the rule of ejusdem generis to ORS 12.110, the term "injury" falls within the class of words that precede it in this instance, torts. Thus, our reading of "injury" in ORS 12.110(4) is consistent with that word's meaning in ORS 12.110(1) (i.e., "injury" means legally cognizable harm).
However, the text and context of ORS 12.110(4) are not unambiguous. We therefore consider legislative history. See PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611-12, 859 P.2d 1143 (when text and context are ambiguous, it is proper to consider legislative history). ORS 12.110(4) was first enacted in 1967. Or. Laws 1967, ch. 406, § 1. The legislature's understanding of the word "injury" at the time that statute was adopted is dispositive, unless subsequent amendments have altered that meaning. The original version of the statute provided:
"An action to recover damages for injuries to the person where in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood, or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, 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 provided that such action shall be commenced within seven years from the date of the treatment or operation upon which *1323 the action is based." Former ORS 12.110(4) (1967) (emphasis added).
Thus, the original version of ORS 12.110(4) made clear that "injury" was what formed the basis for an action, i.e., legally cognizable harm, and "harm" was what was caused by the "injury," i.e., untoward effects.
ORS 12.110(4) was intended to codify the discovery rule announced by this court in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971).[6] In examining Berry, we can discern what the legislature intended by the word "injury" in ORS 12.110(4). In Berry, this court held that the plaintiff, who suffered pain as a result of a needle negligently left in her abdomen following a hysterectomy, was not barred from recovery as a matter of law by the statute of limitations because the statute did not begin to run until the needle was discovered. This court explained:
"To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, `You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,' makes a mockery of the law." Berry v. Branner, supra, 245 Or. at 312, 421 P.2d 996.
In Berry v. Branner, supra, 245 Or. at 312, 421 P.2d 996, this court referred to discovery of the "wrong" in holding that the statute of limitations does not begin to run until the plaintiff can "reasonably be expected to have knowledge of any wrong inflicted." (Emphasis added). Similarly, in Frohs v. Greene, 253 Or. 1, 7, 452 P.2d 564 (1969), which the legislature codified in 1969,[7] this court spoke in terms of "tortious conduct" when it held that the statute does not begin to run until plaintiff is on notice of defendant's "tortious conduct." (Emphasis added). Nothing in the subsequent amendment of ORS 12.110(4) indicates any legislative intent to alter the original meaning of the word "injury."
In light of the text and the context of ORS 12.110(4) and the legislative history of that provision, we hold that the legislature intended the word "injury," as used in ORS 12.110(4), to mean legally cognizable harm. In the tort context of ORS 12.110(4), a harm is legally cognizable if it is the result of tortious conduct. Therefore, "injury," as used in ORS 12.110(4), consists of three elements: (1) harm; (2) causation; and (3) tortious conduct.[8]
To discover a particular element of legally cognizable harm, the plaintiff does not need to know to certainty that each particular element exists. The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of *1324 their claim. See Frohs v. Greene, supra, 253 Or. at 4, 452 P.2d 564 (discovery rule affords opportunity for plaintiff to discover that claim exists). Actual knowledge that each element is present is not required. On the other hand, a mere suspicion is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations 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.
We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care. In such cases, the relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation. See Woolston v. Wells, 297 Or. 548, 557, 687 P.2d 144 (1984) (reasonable care means what a reasonable person of ordinary prudence would do in the same or similar circumstances). Relevant to this analysis will be a plaintiff's failure to make a further inquiry if a reasonable person would have done so. The discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm.
We now consider whether a genuine issue of material fact exists in this case as to plaintiff's discovery of the "tortious conduct" element of legally cognizable harm. Whether a reasonable person of ordinary prudence would be aware of a substantial possibility of tortious conduct is a question of fact that depends upon the nature of the harm suffered, the nature of the medical procedure, and other relevant circumstances. The nature of the harm suffered is important in determining whether a reasonable person would have been aware of a substantial possibility of tortious conduct. Although, in many instances, suffering an untoward result after surgery may put a reasonable person on notice of tortious conduct, certain untoward effects can "mask" tortious conduct. A reasonable person that experiences symptoms that are incidental to a particular medical procedure may not be aware that he or she has been a victim of tortious conduct:
"Normally, knowledge of injury as a result of defendants' actions would put the injured party on sufficient notice of defendants' tortious conduct to commence the running of the statute. However, immediate, adverse side effects commonly result from medical treatment given to gain long-range and more important benefits. Knowledge of momentary, adverse effects which are immediately controlled would not put plaintiff on notice as a matter of law of tortious conduct by defendants." Frohs v. Greene, supra, 253 Or. at 7, 452 P.2d 564.
Assurances made by the attending physician may also have a bearing on whether a reasonable person would be aware of a substantial possibility of tortious conduct. See id. at 6-7, 452 P.2d 564 (statements by physicians considered in assessing whether the plaintiff had discovered claim). A physician's assurances may be particularly influential on a plaintiff because the physician-patient relationship is "a relationship of trust and confidence * * * in which continued treatment or other resort to the skills of the defendant is required." Cavan v. General Motors, 280 Or. 455, 458, 571 P.2d 1249 (1977). If the physician makes a representation on which a plaintiff reasonably relies, it could have the effect of delaying a reasonable person from becoming aware of a substantial possibility of tortious conduct.[9]
*1325 A genuine issue of material fact exists in this case as to when plaintiff in the exercise of reasonable care should have discovered a substantial possibility of tortious conduct.[10] Plaintiff's symptoms were not so clearly unrelated to the procedure performed that as a matter of law a reasonable person would believe that the cause was tortious conduct. In addition, Parsons assured plaintiff that the numbness and loss of use that plaintiff experienced in his left arm was temporary. The assurance raises a genuine issue of fact as to its effect upon a reasonable person. The fact that the assurance came after surgery, rather than before, did not put plaintiff on notice as a matter of law of tortious conduct. Nor can we say that plaintiff was, as a matter of law, unjustified in relying on Parsons's assurances. As this court stated in Schiele v. Hobart Corporation, supra, 284 Or. at 491, 587 P.2d 1010, "[w]e cannot * * * say as a matter of law that anyone who is optimistic about his condition's taking a turn for the better is unreasonable."[11]
Defendants further argue that plaintiff's negligent surgery claim is barred as a matter of law because plaintiff's informed consent claim was barred by the statute of limitations. The Court of Appeals held that plaintiff's informed consent claim was barred by the statute of limitations because "[t]hat claim accrued when plaintiff discovered that he had lost the function of his arm. He knew at that time that he had not been warned of that risk." Gaston v. Parsons, supra, 117 Or.App. at 558, 844 P.2d 941. Because both claims stem from defendants' alleged negligent conduct in relation to the surgery, and because plaintiff suffered only one harm as a result thereof, defendants argue that plaintiff's claims are a single claim that accrued when plaintiff became aware of the numbness and the loss of use of his left arm. We disagree.
In analyzing when a claim accrues for statute of limitations purposes, the issue is when the plaintiff knew or should have known facts that would make a reasonable person aware of a substantial possibility that he or she had suffered damage as the result of tortious conduct. Informed consent claims typically require knowledge of different facts than do negligent surgery claims. The factual basis for an informed consent claim is that a defendant did not warn a plaintiff before surgery of certain risks and that, regardless of what degree of care was exercised by the defendant, the plaintiff was harmed because, with more complete information, he or she would not have consented to the surgery. See Arena v. Gingrich, 305 Or. 1, 4, 748 P.2d 547 (1988) (discussing causation element of informed consent claims). In contrast, a negligent *1326 surgery claim is based on a defendant's failure to exercise the appropriate degree of care in the performance of the surgery, regardless of the risks of which the plaintiff has been warned. See Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 14-15, 734 P.2d 1326 (1987) (discussing elements of negligence claim based upon "special relationship"). Although in some cases, and this is one, the two claims may be closely linked, materially different facts start the running of the statute of limitations for each claim.
Not only can the claims be factually distinct, but they are also legally distinct. Each claim arises from the violation by a defendant of different legal interests of a plaintiff. Informed consent concerns a plaintiff's right to control what is done to his or her body,[12] while negligent surgery reflects a plaintiff's right to be free from physical harm resulting from negligence in the performance of surgery. Indeed, the two torts have different standards of care that are defined by different statutes. See ORS 677.095 (general duty of care for physicians); ORS 677.097 (informed consent). Awareness of tortious conduct is one element of the discovery rule, and the plaintiff need not identify a particular theory for the statute of limitations to begin to run. However, when two different legally protected interests are at stake, awareness of a violation of one interest does not put a plaintiff on notice as a matter of law of the possible violation of other distinct legally protected interests. Each claim must be analyzed separately to determine if a plaintiff knew or should have known facts that would make a reasonable person aware of a substantial possibility that the legally protected interest had been invaded.
For the purpose of the statute of limitations, an informed consent claim is not the same as a negligent surgery claim. Just because one specification of negligence in a complaint is barred by the statute of limitations, it does not necessarily follow that a specification of negligence having a different factual or legal basis is barred. See Little v. Wimmer, 303 Or. 580, 585, 739 P.2d 564 (1987) (although three negligence claims arose out of a single automobile collision, claims based on negligent design and construction of intersection were time-barred, but claim based on negligent maintenance was not). In this case, plaintiff's medical negligence claim is not barred as a matter of law as a consequence of his informed consent claim being time-barred.
We hold, therefore, that in this case it is a question of fact for the jury to decide whether plaintiff unreasonably delayed filing this action with regard to the negligent surgery claim. The jury must decide whether, considering all the relevant circumstances, plaintiff was aware or in the exercise of reasonable care should have been aware of a substantial possibility that he had been harmed as the result of tortious conduct. Any other holding would have the effect of saying that, as a matter of law, a person must file suit within two years of experiencing any difficulties following surgery, regardless of assurances made by the physician. Patients normally should be able to rely on assurances made by their physician. Any other rule would be unfair and unrealistic. The discovery rule is a doctrine of fairness:
*1327 "It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists. * * * We do not believe that the danger of spurious claims is so great as to necessitate the infliction of injustice on persons having legitimate claims which were undiscoverable by the exercise of ordinary care prior to the lapse of two years from the time of the act inflicting the injury." Frohs v. Greene, supra, 253 Or. at 4, 452 P.2d 564.
When a person has major surgery, he or she is at a tremendous informational disadvantage that impedes the opportunity to discover a claim:
"A patient who undergoes an operation is taken into the surgery of a hospital and is given anesthesia which renders him unconscious. He knows nothing of what takes place in the surgery. All of his intimates, such as relatives, friends, and neighbors are excludedand properly sofrom the operating room. Accordingly, all knowledge of what takes place in the course of the operation * * * is exclusively in the possession of the surgeon." Vaughn v. Langmack, 236 Or. 542, 582, 390 P.2d 142 (1964) (Rossman, J., dissenting).
The discovery rule takes that into account and strikes an appropriate balance between protecting plaintiffs and defendants.
"The objective of a statutory limitation on the time within which an action may be brought is, in malpractice cases, the protection of medical practitioners from the assertion of stale claims. We do not believe the legislature intended to limit patients asserting malpractice claims, who by the very nature of the treatment had no way of immediately ascertaining their injury, to the same overall period of time that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong. The protection of the medical profession from stale claims does not require such a harsh rule. The mischief the statute was intended to remedy was delay in the assertion of a legal right by one who had slumbered for the statutory period during which process was within his reach." Berry v. Branner, supra, 245 Or. at 312-13, 421 P.2d 996.
Our holding in this case does not expose physicians to an unending threat of litigation. We note that, in the absence of fraud, deceit, or misleading representation, ORS 12.110(4) provides a statute of repose for medical negligence cases of five years from the date of treatment. Nothing in our holding extends that five-year period.
We conclude that a genuine issue of material fact exists in this case as to when plaintiff discovered or in the exercise of reasonable care should have discovered "injury." Plaintiff's negligent surgery claim is not barred as a matter of law by the statute of limitations. The trial court erred in granting summary judgment for defendants.
The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is reversed, and this case is remanded to the circuit court for further proceedings.
PETERSON, Judge pro tempore, dissenting.
Although I agree with the latter part of the majority opinion (concerning implied consent), I do not agree with the first part, which concerns ORS 12.110(4). I therefore dissent.
ORS 12.110(4) states that, in medical malpractice cases, the statute of limitations begins to run "the date when the injury is first discovered or in the exercise of reasonable care should have been discovered." (Emphasis added.) The majority holds that, in medical negligence actions,
"the statute of limitations 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 * * * tortious conduct * * * exists." 318 Or. at 256, 864 P.2d at 1324.
I believe that the words of ORS 12.110(4) "when the injury is first discovered" (emphasis added)mean knowledge of a causal *1328 relationship between the event and harm resulting from the event, not knowledge of the defendant's fault.
ORS 12.110(1) and (4) are the relevant statutes. They provide:
"(1) An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit."
"(4) 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. 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."
ORS 12.110(1) and (4) contain virtually identical clauses. Subsection (1) refers to "injury to the person." Subsection (4) refers to "injuries to the person." Subsection (4) also states that the action "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." (Emphasis added.)
In considering the text and context of ORS 12.110, it is fair to assume that the legislature, in 1967, 1969, and 1971, intended the subsection (4) phrase "injuries to the person" to have the same meaning as the phrase "injury to the person" contained in subsection (1). In considering the context, the majority states that "[c]ontext includes case law interpreting those statutes" because, "`[w]hen this court interprets a statute, that interpretation becomes a part of the statute as if written into it at the time of its enactment.'" 318 Or. at 252, 864 P.2d at 1321 (citing State v. Sullens, 314 Or. 436, 443, 839 P.2d 708 (1992) (quoting Walther v. SAIF, 312 Or. 147, 149, 817 P.2d 292 (1991))). I therefore examine the precedents of this court before 1967 to determine whether this court, before 1967, had interpreted the phrase "injury to the person."
Current ORS 12.110(1) has been a part of the Oregon Code since 1862. General Laws of Oregon, ch. 1, § 3, p. 140 (Deady 1845-1864), read substantially the same as current ORS 12.010, requiring that actions be filed within a specified time "after the cause of action shall have accrued." Another section prescribed a six-year limitation for "[a]n action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated" (emphasis added), language very similar to current ORS 12.110(1). General Laws of Oregon, ch. 1, § 6, p. 141 (Deady 1845-1864). The six-year limitation of section 6 was amended in 1870 to a two-year period. See General Laws of Oregon, ch. 1, § 8, p. 107 (Deady & Lane 1843-1872).
Before 1965, the predecessor statutes to current ORS 12.110(1) were construed several times to determine when "injury" occurred, thus starting the running of the statute of limitations contained in ORS 12.110(1). Those cases consistently held that the "injury," as used in ORS 12.110(1), occurred when the wrongful act occurred.
Hood v. Seachrest, 89 Or. 457, 174 P. 734 (1918), and Schwedler v. First State Bk. of Gresham, 92 Or. 33, 179 P. 671 (1919), were fraud cases arising from the sale of land. In both cases, the court held that the "injury" occurred at the time of the fraud, not the discovery of the fraud. In 1919, responding to those two decisions, the Legislative Assembly amended the statute by adding the words "provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence *1329 only from the discovery of the fraud or deceit." Or. Laws 1919, ch. 122, § 8. That language remains in current ORS 12.110(1).
Respecting the 1919 amendment to what is now ORS 12.110(1), Vaughn v. Langmack, 236 Or. 542, 547-48, 390 P.2d 142 (1964), stated:
"Logic and common sense make unavoidable the conclusion that when the legislature, evidently prompted by the decision in Hood v. Seachrest, amended the statute in 1919 so as to provide that the time limited for bringing an action based upon fraud or deceit should commence to run only from the discovery of the fraud or deceit, it intended that, as to all other actions, the provision that the time commences to run from the accrual of the cause of action should remain unchanged."
In Wilder v. Haworth, 187 Or. 688, 213 P.2d 797 (1950), the court was required to decide, under a predecessor statute to current ORS 12.110(1),[1] whether injuries stemming from radiation treatment performed in 1937 occurred on the date of the treatment or the date that plaintiff discovered that she had been harmed by the treatment, the date of discovery being in 1946. The court held that two years from the date of the injury meant two years from the date of treatment: