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.
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:
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.
" 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.
An Oregon appellate court similarly 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). See Dawson, supra, 543 F. Supp. at 1334-36 for further discussion of jurisdictions which adopt this view.
In that respect, this case is similar to those malpractice and products liability cases in which courts have held that statutes of limitation did not begin to run where plaintiffs received reassurances from defendants that prevented plaintiffs from having sufficient certainty about the existence of facts pertaining to the elements of the statutes of limitation. See Gaston, 318 Or at 260-61; Forest Grove Brick v. Strickland, 277 Or 81, 559 P2d 502 (1977); Hoeck, 149 Or App at 613-14; Penuel v. Titan/Value Equities Group, Inc., 127 Or App 195, 200-01, 872 P2d 28, rev den, 319 Or 150 (1994); Hoffman v. Rockey, 55 Or App 658, 662-63, 639 P2d 1284, rev den, 292 Or 722 (1982). In those cases, a manufacturer's assurance that a product could be fixed or a doctor's assurance that an untoward effect was normal and not the result of negligence presented each plaintiff with several alternative explanations for the injury, only one of which supported the plaintiff's tort claim.
In that respect, the discovery rule may be somewhat more narrow in Massachusetts than in many other States where a cause of action accrues only when a plaintiff has notice of all the elements of a cause of action. See, e.g., Anderson v. Shook, 333 N.W.2d 708, 712 (N.D. 1983); Hoffman v. Rockey, 55 Or. App. 658, 663 (1982); Jacoby v. Kaiser Foundation Hosp., 1 Haw. App. 519, 525 (1981). Our courts have not had occasion to rule on the more general question, related to the precise issue in the present case, whether application of the discovery rule delays accrual of a cause of action until the plaintiff knows or should know the identity of the particular defendant claimed to be responsible for the harm.
" 48 Or. App. 934 -935. To those cases can be added Colvin v. FMC Corporation, 43 Or. App. 709, 604 P.2d 157 (1979) (a strict liability action based on us of an insecticide); Adams v. OSP, 289 Or. 233, 611 P.2d 1153 (1979) (Tort Claims Act); Melgard v. Hanna, 45 Or. App. 133, 607 P.2d 795 (1980) (legal malpractice); and Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284 (1982) (medical malpractice). Of all the cases referred to, Schiele is the one most closely resembling the present case.