He knew at that time that he had not been warned of that risk. As we said in Hoffman v. Rockey, 55 Or. App. 658, 664, 639 P.2d 1284, rev den 292 Or. 722 (1982), "[P]laintiff's discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems — permanent or not." We agree with the trial court that, as a matter of law, the claim based on lack of informed consent is time-barred.
Here, there is no issue whether the discovery rule is applicable, see n 4, infra, or whether plaintiff did discover his cause of action against OSAA less than two years before bringing it. The only issue is whether he should have discovered the existence of his claim at an earlier time, or, more correctly, whether there was evidence to support the jury's finding that he should not. In Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284, rev den 292 Or. 722 (1982), we set out the following test: "A plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured, (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent.
245 Or at 315-16. In Hoffman v. Rockey, 55 Or. App. 658, 663, 639 P.2d 1284, rev den 292 Or. 722 (1982) (involving medical malpractice and applying ORS 12.110(4)), we explained: "A plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured, (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent. * * *"
In Oregon, the appellate court likewise concluded that a "plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured; (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent." Hoffman v. Rockey, 55 Or. App. 658, 663, 639 P.2d 1284, 1286 (1982). The Oregon court rationalized such a construction of the discovery rule by noting:
We held that the plaintiff's cause of action had accrued at the time of the accident, because he knew then that he had been injured and that the accident was attributable to the negligence of the defendant. The fact that he initially thought that his injury was only minor did not mean that a new cause of action accrued when he later learned that he had suffered an unanticipated kind of harm. So, too, in Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284 (1982), we held that the plaintiff knew that he was harmed when he had an infection in his leg shortly after surgery; he did not have a new cause of action when he learned that his leg would have to be amputated. "[P]laintiff's discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems — permanent or not." 55 Or App at 664.
Until the tort is or should be discovered, i.e., until a plaintiff realizes that (1) she has been injured, (2) the injury can be attributed to an act of the alleged tortfeasor and (3) the act of the alleged tortfeasor was somehow negligent, the statute does not commence to run. Hoffman v. Rockey, 55 Or. App. 658, 663, 639 P.2d 1284 (1982). We also said in Hoffman, quoting with approval our earlier statement in Melgard v. Hanna, 45 Or. App. 133, 136, 607 P.2d 795 (1980):
A number of courts have, however, adopted discovery rules under which a cause of action does not accrue until the plaintiff discovers or in the exercise of due diligence should discover, in addition to his injury and its cause, that the injury has resulted from some negligence or wrongdoing on the part of the defendant, some actionable wrong. See Dawson v. Eli Lilly and Co., supra (applying D.C. Law); Goodman v. Mead Johnson Co., 534 F.2d 566, 575 (3d Cir. 1976) (applying New Jersey law); Anderson v. Shook, 333 N.W.2d 708 (N.D. 1983); Hoffman v. Rockey, 55 Or.App. 658, 639 P.2d 1284, 1286 (1982); Jacoby v. Kaiser Foundation Hospital, 1 Haw.App. 519, 622 P.2d 613 (1981); Foil v. Ballinger, 601 P.2d 144, 147 (Utah 1979); Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138 (1977); Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (Colo. 1970).
Further, under Oregon law, in the context of an alleged violation of informed consent, "plaintiff's discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems-permanent or not." Hoffman v. Rockey, 55 Or. App. 658, 664, 639 P.2d 1284, rev. denied, 292 Or. 722, 644 P.2d 1131 (1982) (emphasis added); see also Gaston v. Parsons, 117 Or. App. 555, 558, 844 P.2d 941 (1993) (doctor's assurances relevant to timeliness of medical malpractice claim, but court did not consider them in context of informed consent claim), aff'd on other grounds, 318 Or. 247, 864 P.2d 1319. Any assurances Dr. Arrendondo gave Walton after the surgery, and whether they constitute "fraud, deceit or [a] misleading representation," are irrelevant. Walton knew at least as of February 15, 2011 that he suffered from a condition Dr. Arrendondo had not warned him about. Consequently, Dr. Arrendondo's assurances do not toll the statute of limitations.
" (Citation omitted; emphasis in original.) In the trial court, plaintiff relied on the formulation of those elements found in Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284 (1982). The third prong of the test in that case was described as "the act of the alleged tortfeasor was negligent."
" Id. at 1338. See, e.g., Brown v. Mary Hitchcock Memorial Hosp., 117 N.H. 739, 378 A.2d 1138 (1977); Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981); Hoffman v. Rockey, 55 Or.App. 658, 639 P.2d 1284, reh'g. denied, 292 Or. 722, 644 P.2d 1131 (1982); Foil v. Ballinger, 601 P.2d 144 (Utah 1979); Ohler v. Tacoma General Hospital, 92 Wn.2d 507, 598 P.2d 1358 (1979). We are convinced, after reviewing the case law and weighing the equitable considerations, that the better view would be to adopt the following rule: in a drug product-liability action where the manifestation of an injury, the cause of that injury, and the person's knowledge of the wrongdoing by the manufacturer occur at different points in time, the running of the statute of limitations would begin when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.