OTLA Trial Lawyer Fall 2020

57 Trial Lawyer • Fall 2020 to the plaintiff as she had adequate statutory remedies. The Court of Appeals reversed and remanded the statutory claims but oth- erwise affirmed the dismissal of the wrongful discharge. The Court of Ap- peals concluded the amended complaint was made to correct a misnomer and did not change the party. Thus, under ORCP 23C, if the plaintiff served the correct entity with the original complaint, and the correct entity should reasonably have understood from the pleadings it is the entity intended to be sued, then the amendment relates back and is not time barred. Because the plaintiff had served the correct entity with the original com- plaint, the body of the complaint refer- enced the defendant as being a business entity and the plaintiff ’s employer, and the defendants’ lawyer advised the plain- tiff the correct entities to sue, the Court of Appeals held that the plaintiff ’s statu- tory claims were not time barred. In regard to the wrongful discharge claim, the plaintiff argued the facts al- leged gave rise to wrongful discharge because she was terminated not only for protecting herself but also for fulfilling the important public duty of preventing the spread of disease to the public. The plaintiff argued that unless there existed both an adequate statutory remedy for the allegedly wrongful conduct and a legislative intent to preclude the com- mon-law remedy, she could bring a claim for wrongful discharge. The Court of Appeals disagreed, stating wrongful dis- charge was meant to fill a gap where a discharge in violation of public policy would not otherwise be adequately rem- edied, requiring both adequate statutory remedies and legislative intent would enlarge the tort beyond that principle. The Court of Appeals also concluded in order for the plaintiff to show she was fulfilling an important public duty, the duty must be based upon constitutional or statutory provisions or case law. Here, the plaintiff could not cite a specific law that imposed a duty upon her to prevent the spread of communicable diseases. Thus, the Court of Appeals affirmed the dismissal of the wrongful discharge claim. Plaintiff may bring claims of vicarious liability and negligence against hospital for non-employee doctor’s malpractice where doctor is apparent agent of hos- pital and plaintiff had alleged negligent granting of privileges and peer review processes. Towner v. Bernardo , 304 Or App 397 (2020), Shorr, J. Brent Barton andTravis Eiva represented the plaintiff. The plaintiff sought emergency medical care at Silverton Hospital, which extensively advertises and markets its provision of emergency and medical care, including its quality “Specialist Centers and medical staff ” in the local commu- nity. Defendant Dr. Bernardo has staff privileges at Silverton Hospital, was See Sheets p 58