BARRON, J. pro tempore.

Affirmed.

BARRON, J. pro tempore

Plaintiff Kelly Christiansen, the mother and conservator of the estate of her minor child, James Carrier, appeals from a judgment dismissing her medical negligence action on the ground that it was barred by the ultimate repose provision of ORS 12.110(4). Plaintiff argues that the application of that provision to her claims violates the Remedy Clause, Article I, section 10, of the Oregon Constitution. For the reasons set forth below, we affirm the trial court's dismissal.

In reviewing a grant of a motion to dismiss, we assume the truth of all allegations in the complaint, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party. Barke v. Maeyens, 176 Or App 471, 473, 31 P3d 113 (2001), rev den, 333 Or 655 (2002). The complaint alleges that defendants, a hospital and an obstetrician, failed to recognize signs of fetal distress and maternal infection during plaintiff's labor on March 14, 1994, and, as a result, negligently delayed performing a cesarean section delivery of the child. Immediately after delivery, the child was "floppy and unresponsive," "required neonatal resuscitation[,] and suffered his first seizure within eight hours of his birth." He was discharged approximately one week later; at that time, his "physicians stated that a cranial ultrasound and CT Scan of the brain did not show any evidence of abnormality. An EEG taken then was mildly abnormal, but not specific."

Approximately three months after the child's birth, Dr. James R. Schimschock of the Child Neurology Clinic told plaintiff that the child had been "developing normally" and gave him a "good prognosis." On or about May 11, 1999, Schimschock "noted that [the child] had seemed to make his motor landmarks at appropriate intervals" but diagnosed mixed developmental disorder, developmental speech or language disorder, and partial epilepsy. Schimschock referred the child to Dr. Jay Edwards for further evaluation. Edwards examined the child on June 2, 1999, and noted that the child "reached his early developmental milestones, but was beginning to show signs of neurological deficits, relating to an anoxic event in-utero."

Although plaintiff alleged that she was generally aware of the course of events leading up to the cesarean section, she did not allege that she knew that the child was "floppy and unresponsive" after birth, that he needed neo-natal resuscitation, or that he had a seizure within eight hours of the cesarean section delivery. Within six to eight months after delivery, plaintiff "suspected that there may have been negligence in the medical care provided" during the labor and delivery, "but at the time there were no known permanent injuries to" the child. Plaintiff contends that she did not learn of the child's permanent injuries until May 11, 1999, when Schimschock diagnosed the child as having several neurological disorders.

Plaintiff filed this action against defendants in January 2003, more than five years after the child's birth on March 14, 1994, but less than five years after she allegedly discovered the existence and nature of his injuries in May 1999. In lieu of filing an answer, defendants moved to dismiss the complaint, pursuant to ORCP 21 A(9), as barred by either the statute of limitations (because the complaint alleges that plaintiff "suspected * * * negligence" six to eight months after the delivery) or by the statute of ultimate repose. See ORS 12.110(4). Plaintiff contended that the suit was filed less than five years after she discovered the child's injuries, as required by ORS 12.160, and that application of ORS 12.110(4) to her claims violates Article I, section 10, of the Oregon Constitution (the Remedy Clause). The trial court dismissed the complaint with prejudice, ruling that it was barred by ORS 12.110(4) and holding that ORS 12.110(4) is not unconstitutional by reason of violating Article I, section 10, of the Oregon Constitution.

We first address defendants' subconstitutional argument that plaintiff's claims are barred by the two-year statute of limitations, ORS 12.110(4), for claims based on medical negligence. See Ainsworth v. SAIF, 202 Or App 708, 711-13, 124 P3d 616 (2005), rev den, 341 Or 216 (2006) (explaining that courts must consider subconstitutional arguments before reaching constitutional questions). Defendants contend that the allegation that, within six to eight months after the child's birth, plaintiff "suspected that there may have been negligence in the medical care provided to [her]" during the birth can be construed to mean only that she knew or should have known of facts that would make a reasonable person aware of the substantial possibility of the allegedly tortious conduct. We disagree. Construing the complaint in the light most favorable to plaintiff, as we must, Barke, 176 Or App at 473, we conclude that plaintiff merely "suspected" tortious conduct within six to eight months after the child's birth and that she did not discover the child's injuries for purposes of the statute of limitations until May 1999. The existence of such a suspicion will not start the statute of limitations running. See Gaston v. Parsons, 318 Or 247, 256, 864 P2d 1319 (1994) (holding that a statute of limitations will not begin to run if a plaintiff has only a "mere suspicion" of legal injury, but it will begin to run if the plaintiff was or should have been aware of a "substantial possibility" of legal injury). Accordingly, under ORS 12.160, plaintiff had until five years from May 1999 within which to bring the claim. As noted, however, under ORS 12.110(4), the statute of ultimate repose, notwithstanding ORS 12.160, every action must be commenced within five years of the date of treatment. In this case, the statute of ultimate repose bars plaintiff's claim because it was not brought within five years of March 14, 1994.

We must next consider whether application of the statute of ultimate repose violates the constitutional guarantees of the Remedy Clause. Although both this court and the Oregon Supreme Court have previously upheld statutes of ultimate repose against Remedy Clause challenges, see Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974); Josephs v. Burns Bear, 260 Or 493, 491 P2d 203 (1971); Davis v. Whiting Corporation, 66 Or App 541, 674 P2d 1194, rev den, 297 Or 82 (1984), Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), rev den, 307 Or 514 (1989), we have not squarely addressed the issue in light of Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001).

The Smothers court adopted an analysis that evaluates a challenged statute in terms of the purpose the drafters of the Oregon Constitution had in adopting the Remedy Clause: to preserve absolute common-law rights respecting person, property, and reputation that existed when the constitution was adopted in 1857.

"[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 second question is whether it has provided a constitutionally adequate substitute remedy for the common-law cause of action for that injury."

332 Or at 124. Because we decide that ORS 12.110(4), as applied to the claim before the court, does not abolish a common-law cause of action that existed in 1857, we answer "no" to the first question posed by Smothers and, therefore, need not address the second question.

Under Lawson v. Hoke, 339 Or 253, 259, 119 P3d 210 (2005), we are enjoined to identify the circumstances of the case that are pertinent to the inquiry of whether the common law recognized a claim. See Smothers, 332 Or at 129 (framing the relevant inquiry as "whether, at common law in Oregon in 1857, an employee would have had a cause of action against an employer for failure to provide a safe workplace and failure to warn of dangerous working conditions"); see also Juarez v. Windsor Rock Products, Inc., 341 Or 160, 144 P3d 211 (2006) (considering whether the Remedy Clause protected a loss of consortium claim brought by a parent and adult children of a person who was killed as the result of the negligence of the person's employer); Lawson, 339 Or at 259-60 (examining not only whether the right to recover noneconomic damages resulting from an accident on a public road caused by another's negligence existed in 1857, but also whether, at that time, such a remedy could have been conditioned on whether the injured driver was licensed to be at the place where her injury occurred).

There is no dispute that a cause of action for medical negligence existed in 1857. See, e.g., Langford v. Jones, 18 Or 307, 22 P 1064 (1890). Plaintiff's claim is brought on behalf of her minor child for prenatal injuries that she claims were caused by medical negligence. The question, therefore, in this case is whether a claim for prenatal injuries caused by medical negligence was recognized by the common law of Oregon, or any other jurisdiction, around the time the Oregon Constitution was adopted. Defendants cite Dietrich v. Northampton, 138 Mass 14, 1884 WL 4976 (1884), the first American case to consider whether an infant could recover for prenatal injuries negligently inflicted. In addressing the issue, Justice Oliver Wendell Holmes, writing for the court, stated, "But no case, so far as we know, has ever decided that, if the infant survived [an accident or injury that befell the mother], it could maintain an action for injuries received by it while in its mother's womb." Id. at 15; see also Allaire v. St. Luke's Hospital, 184 Ill 359, 368, 56 NE 638 (1900) ("[S]o far as we have been able to discover, [the legal fiction that an unborn child may be regarded as in esse for some purposes] has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth."). Given that case law, we must agree with defendants that no such cause of action existed in 1857.

In the years immediately surrounding the adoption of the Oregon Constitution, no Oregon case addressed whether an infant injured during birth could maintain an action for medical negligence against the delivering physician. The Smothers court has instructed that, where Oregon courts were silent in the years surrounding the creation of the Oregon Constitution, the state of the common law in 1857 may be ascertained from other sources, including cases from other jurisdictions. 322 Or at 129. Cases from other jurisdictions decided after the adoption of the Oregon Constitution — and for more than the next 60 years — followed Dietrich, despite the strong dissent in Allaire. See Roland F. Chase, Annotation, Liability for Prenatal Injuries, 40 ALR 3d 1222, § 2 [a] (1971) (noting that Dietrich "set the tone of judicial opinion for the next 60 years" and that "courts were nearly unanimous in rejecting a right of action for prenatal injuries"). But see id. at § 2[a] n 10 (citing a handful of cases decided during the 1920s expressing the view that an infant could maintain an action for injuries it received as a viable fetus). Although Dietrich, which involved a nonviable fetus, arguably left open the question of whether a viable fetus might maintain an action for prenatal injuries, see Williams v. Marion Rapid Transit, Inc., 152 Ohio St 114, 119, 87 NE2d 334 (1949), the vast majority of cases decided over the next 60 years — 90 years after the adoption of the Oregon Constitution — failed to draw a distinction between viable and nonviable fetuses and, almost without exception, rejected the existence of a cause of action in tort for prenatal injuries. See, e.g., Allaire, 184 Ill at 368 ("That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed."); see also 40 ALR 3d 1222 § 1[a] n 5, § 2 [a] (defining "prenatal," in accordance with case law, to include injuries resulting from birth trauma and noting that "[f]inally, in 1946 a United States District Court [in Bonbrest v. Kotz, 65 F Supp 138 (DCDC 1946)] squarely held that injuries to a viable unborn child are compensable in a tort action brought by the child after its birth").

The first Oregon case to consider the question, Mallison v. Pomeroy, 205 Or 690, 291 P2d 225 (1955), was decided nearly a century after the adoption of the Oregon Constitution. That fact significantly detracts from the weight the case should be given in a Smothers analysis, because Mallison was not decided "within a relatively short period after 1857." Smothers, 322 Or at 129. Plaintiff nevertheless argues that Mallison supports the existence of such a cause of action because the court suggested that a viable fetus should be considered a "person" protected by the Remedy Clause, 205 Or at 697 (citing Williams, 152 Ohio St at 128-29 ), and favorably cited cases relying on common-law sources such as Blackstone and Lord Coke to support the existence of common-law rights of an unborn viable fetus. Id. at 694-97.

Regardless of whether we believe that Dietrich was wrongly decided, and regardless of whether we agree with the reasoning of Mallison, we cannot say that, in 1857, Oregon courts would have recognized a common-law cause of action under the circumstances of this case. The weight of authority suggests otherwise, and the Mallison court acknowledged several facts that appear to settle the debate. First, although Mallison implied that viable fetuses should be considered "persons" under the Remedy Clause, and thus be allowed to sue for prenatal injuries, the case it cited in support of that proposition, Williams, explicitly acknowledged that the notion that an "infant is a part of the mother until birth and has no existence in law until that time" was a " time-worn fiction." 152 Ohio St at 129 (emphasis added). That observation suggests that the drafters of the Oregon Constitution did not intend to include fetuses, viable or not, within the protections of the Remedy Clause because it was generally accepted at that time that, for the purposes of tort law, an infant was part of the mother until the moment of its birth.

Second, Dietrich is "[t]he mother case in this country" regarding whether a fetus may seek damages for injuries suffered while in its mother's womb. Mallison, 205 Or at 691. That is significant because Justice Holmes relied heavily on the utter lack of precedent recognizing such a cause of action to conclude that the common law afforded no remedy to the injured infant. Although the Mallison court cited several sources criticizing Dietrich's reliance on lack of precedent because "'a more accurate statement * * * would have been that there was no English authority on either side of the question,'" Mallison, 205 Or at 693-94 (quoting Amann v. Faidy, 415 Ill 422, 429, 114 NE2d 415, 416 (1953), which overruled Allaire and, in effect, adopted the reasoning of Judge Boggs's dissent), and thus "'[t]here is nothing in the common law denying such a right to the child,'" id., 205 Or at 695 (quoting Tucker v. Howard L. Carmichael Sons, Inc., 208 Ga 201, 206, 65 SE2d 910 (1951)), those criticisms do not undermine our analysis. Smothers requires us to consider whether the right to maintain the common-law cause of action at issue was "' well established prior to the enactment of our Constitution.'" 332 Or at 116 (quoting Stewart v. Houk et al, 127 Or 589, 591, 271 P 998, on reh'g, 127 Or 589, 272 P 893 (1928)) (emphasis added). The fact that a cause of action was not foreclosed by the common law does not demonstrate that it was well established, and in fact suggests the opposite — a question cannot be answered before it is asked. See Allaire, 184 Ill at 367 ("While it is true that [a lack of precedent] is not conclusive that the action may not be maintained, yet, in view of the fact that * * * similar circumstances must have before occurred, it is entitled to great weight, especially when the right to maintain the action is, to say the least, doubtful.").

Finally, Justice Holmes considered both Lord Coke's statement that criminal liability might attach to one who injures a viable fetus and Blackstone's observation that a child in its mother's womb is considered in esse for certain legal purposes — both relied on in the opinions cited in Mallison in support of the existence of a cause of action — but nevertheless concluded that those sources did not dictate whether an infant could maintain a tort action for injuries received in its mother's womb:

"[The question of] whether an infant dying before it was able to live separated from its mother could be said to have become a person recognized by the law as capable of having a locus standi in court, or of being represented there by an administrator * * * would not be disposed of by citing those cases where equity has recognized the infant provisionally while still alive en ventre. And perhaps not by showing that such an infant was within the protection of the criminal law."

138 Mass at 16-17 (citations omitted). Allaire, which considered whether an infant injured in his mother's womb four days prior to his birth could maintain a tort action in his name, further indicates that the common-law sources relied upon in Mallison would not have been interpreted in 1857 to establish the existence of a negligence action under the circumstances of this case. 184 Ill at 367 (quoting Walker v. Great Northern Railway Co., 28 LR (Ir) 69 (1891)) ("'As Lord Coke says, the plaintiff was then pars viscerum matris [part of his mother's body], and we have not been referred to any authority or principle to show that a legal duty has ever been held to arise toward that which was not in esse in fact, and has only a fictitious existence in law, so as to render a negligent act a breach of duty.'").

Because plaintiff would not have had an absolute common-law right to bring an action in negligence for the child's prenatal injuries in 1857, our inquiry ends here. ORS 12.110(4) is not unconstitutional as applied to plaintiff's claims.

Affirmed.