DeVORE, J.
Plaintiff appeals from a judgment dismissing his claim of professional negligence against defendant Kather. The trial court concluded that plaintiff's amended complaint did not relate back to the date of the original complaint and, as a consequence, the claim was barred by the statute of limitations. On appeal, we must decide how a court should apply ORCP 23(C) to an incomplete complaint. We conclude that the amended complaint relates back to the original complaint, because the revised claim against Kather "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." See ORCP 23(C). The statute of limitations does not bar plaintiffs claim. Therefore, we reverse and remand.
On review of a successful motion to dismiss under ORCP 21 and a statute of limitations, "we accept as true `factual allegations in the complaint and all reasonable inferences arising from those allegations.'" Sternberg v. Lechman-Su, 271 Or.App. 401, 402, 350 P.3d 593 (2015) (quoting Johnson v. Babcock, 206 Or.App. 217, 219, 136 P.3d 77, rev. den., 341 Or. 450, 143 P.3d 773 (2006)); see also Guirma v. O'Brien, 259 Or.App. 778, 780, 316 P.3d 318 (2013). Accordingly, we take the following summary from the original complaint. It named Kather and others as defendants in the caption, and the body of the complaint began by alleging generally that plaintiff was a patient of Kather and later a patient of a defendant physician Rabinovitch at defendant hospital Rogue Valley Medical Center.
The complaint detailed that, on January 15, 2010, plaintiff sought treatment from Kather, a licensed nurse practitioner, because plaintiff was having difficulty breathing. Kather diagnosed the condition as reactive airway disease (RAD) and provided plaintiff with an inhaler to treat the condition. Plaintiff sought further treatment from Kather on February 17, May 18, and June 2.
Plaintiffs breathing problems worsened and were unresponsive to treatment. Plaintiff sought care at the emergency department of Curry General Hospital and was transferred immediately to Rogue Valley Medical Center. Thereafter, on July 8, 2010, he learned that he had been diagnosed with acute respiratory failure secondary to pneumocystis
On July 6, 2012, plaintiff filed a Complaint for Professional Negligence, naming Kather, Rabinovitch, and Rogue Valley as defendants. As against the physician and hospital, the complaint alleged a specification of fault that asserted their breach of care in "failing to appropriately treat plaintiff's respiratory failure secondary to [PCP]." As to Kather, the complaint did not identify a particular specification of fault. The complaint did, however, allege Kather's RAD diagnosis — something different than the subsequent diagnosis that followed. The complaint alleged collectively against all defendants that, "[a]s a foreseeable result of the defendants' violation of the standard of care, plaintiff became critically ill and required hospitalization for almost two months, lost his colon," and would endure lifelong pain and suffering. Plaintiff asked noneconomic damages of $1,500,000. The complaint also alleged collectively against all defendants that as a "foreseeable result of the defendants' breach of the standard of care," plaintiff incurred economic damages estimated at $1,500,000.
Initially, Kather moved under ORCP 21 to dismiss the claim for failure to state a claim against him. The court granted the motion, but gave plaintiff leave to amend the complaint. Plaintiff filed an amended complaint on December 24, 2012, and added specifications of fault against Kather, asserting that he was negligent in one or more of the following ways:
Kather again moved to dismiss plaintiff's claim, now arguing that the amended complaint was not filed within the two-year statute of limitations applicable to medical negligence claims. ORS 12.110(4). Plaintiff responded that the allegations against Kather should relate back to his original complaint as provided under ORCP 23(C). Kather offered two arguments to the contrary. First, in the absence of specifications of fault, Kather contended that there was no "conduct, transaction, or occurrence" set forth in the original pleading to which the amended complaint could relate back. In his view, specifics, not generalities, matter. Second, given the absence of specifications of fault and the consequent failure to state a claim, Kather contended that he was not a party until plaintiff filed the amended complaint, such that the second and more stringent sentence in ORCP 23(C) should preclude relation back on these facts. That is, if Kather was not effectively a party to the original complaint, then the action against Kather arguably would not have been commenced until filing and service of the amended complaint — a date too late for purposes of the rule as to a new party.
Addressing these alternative situations in its two sentences, ORCP 23(C) describes relation back, depending whether there is the same or a new party. The rule provides:
ORCP 23(C).
After a hearing, the trial court determined that the new allegations did not relate back due to plaintiffs failure to plead specific allegations of fault against Kather in the original complaint. The court deemed that the mere inclusion of Kather as a named defendant was not sufficient to allow the amended complaint to relate back to the filing of the original complaint. In so ruling, the trial court appears to have accepted defendant's first argument — that the amended claim did not arise out of the conduct, transaction or occurrence attempted to have been set forth in the original complaint.
At the outset, we reject Kather's second argument. Kather argues that he "is essentially a `new party' for ORCP 23(C) purposes because no prior claim was actually asserted and the court dismissed the initial complaint against him." (Emphasis added.) Although the trial court ruled that the original complaint failed to state a claim against him in the absence of specifications of fault, that conclusion does not mean that Kather was not then a party to the action. He was identified in the caption. The original complaint alleged that "defendant Tracey Stephen Kather N.P. was a nurse practitioner" and that plaintiff was his patient. Kather was served with the original complaint within 60 days of its filing, which means that the action against him was commenced at the time of filing of the original complaint. See ORS 12.020(2) (action commenced when service occurs within 60 days of filing).
We focus on Kather's first argument, which the trial court apparently accepted, challenging the application of the rule's first sentence. In applying ORCP 23(C), our task is to first "identify the `conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,'" then determine whether the claim or defense arose out of that conduct,
Plaintiff acknowledges that the original complaint failed to allege the particular ways in which Kather was negligent, but plaintiff argues that the amended complaint relates back because the original complaint was sufficient to notify Kather of the claim against him. Plaintiff argues that Kather "would have been able to discern from the original complaint that the allegations against him concerned the treatment he provided to plaintiff for a breathing problem between January 15, 2010 and July 2010." Plaintiff contends that the "conduct, transaction, or occurrence" that is at issue is the course of treatment that Kather provided and that treatment gave rise to the claims against him.
Plaintiff points to the commonality of the original and amended complaint: the amended complaint added no significant factual information concerning Kather's treatment of plaintiff, such as alleging treatment on other dates or in other ways; the specifications of professional negligence in the amended complaint related to the factual allegations of the treatment in the original complaint; the original complaint contains allegations about Kather's diagnosis and treatment of plaintiffs respiratory issues, while alleging a different diagnosis by a physician later; the defendants' collective negligence lead to toxic megacolon and surgery to remove his large intestine; and the original complaint sought the same damages that were a "foreseeable result of the defendants' breach of the standard of care." (Emphasis added.) Given all that, plaintiff argues, the original complaint apprised defendant of a claim of professional negligence against him concerning his treatment of plaintiff. Plaintiff believes that the original complaint served to provide "the notice that the statute of limitations was intended to assure." Caplener v. U.S. National Bank, 317 Or. 506, 522, 857 P.2d 830 (1993) (internal quotation marks omitted). Plaintiff reminds us that we should follow the Supreme Court's direction "to construe the pleadings liberally with a view of substantial justice between the parties." Welch v. Bancorp, 296 Or. 208, 223, 675 P.2d 172, reh'g den., 296 Or. 713, 679 P.2d 866 (1984).
Defendant's argument against relation back turns on the omission of specifications of fault against Kather in the original complaint. Defendant argues that two cases — Walters, 176 Or.App. at 208, 30 P.3d 1214 and Doughton, 255 Or.App. at 433, 298 P.3d 578 — demonstrate that our identification of the conduct, transaction, or occurrence must be done narrowly, "with reference to the specific allegations that make up the specific claim in the original complaint." (Emphases in original.) Here, defendant insists, there were no specific allegations in the original pleading.
We look to Walters, Doughton, and, as we will note, a Supreme Court precedent, but what we find is not the narrow test that defendant urges. Defendant is generally correct insofar as Walters and Doughton referred to the original allegations in determining whether the new claims arose out of the conduct, transaction, or occurrence indentified in the original pleading. Reference to the original pleading is intended to serve the essential inquiry under ORCP 23(C). In Walters, we explained that "the essential inquiry under ORCP 23(C) is one of notice." 176 Or.App. at 208, 30 P.3d 1214. An amended complaint filed after the limitations period may relate back "if the defendant would have been able to discern from the earlier pleading a potential for the additional basis of liability." Id. (citations and quotation marks omitted). Likewise, Doughton explained, "We examine the totality of the original complaint
In Walters, the original complaint alleged that a physician had negligently delivered a baby. The plaintiff alleged that the physician failed to take appropriate precautions during a caesarian section delivery, which resulted in physical harm to the baby and emotional harm to the mother. The plaintiff did not allege physical injury to the mother. 176 Or.App. at 209, 30 P.3d 1214. The amended complaint, by contrast, alleged physical injury to the mother and "introduced entirely new specifications of negligence" as to the mother, concerning her own injury from the caesarian section delivery, stress tests, and fetal monitoring. Id. at 209-10, 30 P.3d 1214. We concluded that the new claims concerning physical harm to the mother did not relate back to the earlier claims. We explained that the original pleading would not have provided notice to the defendant doctor of the later asserted claim for physical harm to the mother. The amendment involved matters that did not arise out of the originally pleaded conduct, transaction, or occurrence. The critical differences we identified were "(1) the nature of [the defendant's] alleged tortious conduct, (2) the source of causation of injury to [the plaintiff], and (3) the nature of [the plaintiff's] alleged injury and resultant damages[.]" Id. at 212, 30 P.3d 1214. Given those differences, we found that "there is insufficient similarity or relationship between the original and amended complaints" to put the defendant reasonably on notice that the plaintiffs later asserted claims would arise out of the conduct, transaction, or occurrence originally pleaded. Id.
In reaching that conclusion, we considered a Supreme Court case, Welch, 296 Or. at 208, 675 P.2d 172, where the court found that subsequent allegations did relate back to an earlier pleading. In Welch, the plaintiff alleged in the original complaint that the defendant had made misrepresentations to a trust. The amended complaint added allegations that the defendant also made misrepresentations to the plaintiff. Id. at 220, 675 P.2d 172. The Supreme Court concluded that the misrepresentation to the plaintiff added in the amended complaint, given that it involved "interfering with the same contract substantially at the same time," would "unite[] with the originally pleaded misrepresentation to the Trust to cause the single injury alleged in the original complaint." Id. at 222, 675 P.2d 172. In Walters, we found features in Welch that become significant to the case at hand. We summarized:
176 Or.App. at 211, 30 P.3d 1214 (quoting Welch, 296 Or. at 222, 675 P.2d 172) (emphasis in Walters).
These cases counsel that the amended complaint in this case should relate back to the original complaint. Contrary to Kather's argument, plaintiff's failure to allege specific breaches of due care is not determinative. Although specifications of fault are useful to identify the conduct, transaction, or occurrence set forth in the original pleading, they are not the only means by which to identify the circumstances that gives rise to a claim. The court may also compare the predicate facts, the injury, and the damages sought in the earlier and later complaints. Welch, 296 Or. at 222, 675 P.2d 172; Walters, 176 Or.App. at 211-12, 30 P.3d 1214.
In this case, the allegations added more particularity about how Kather was negligent, but the specifications of fault concern the same predicate facts. They still arose out of Kather's examination of plaintiff, his particular diagnosis and treatment of plaintiffs respiratory issue, and plaintiffs subsequent
We conclude that, in spite of plaintiffs failure in the original complaint to allege specifications of fault, Kather would have been able to discern that, like other defendants, he faced a claim of liability to plaintiff caused by his diagnosis and treatment of plaintiff's respiratory condition, which contributed to plaintiff's hospitalization, toxic megacolon, and resulting colectomy. Although the original complaint was critically incomplete, the circumstances involving Kather's diagnosis and treatment were circumstances that were "attempted to be set forth in the original pleading" as a claim against him. ORCP 23(C) (relation back despite imperfect allegations). The amended pleading related back to the original pleading. Plaintiff's claim was not barred by the statute of limitations.
Reversed and remanded.
