Oregon’s Unfulfilled Tort Reform

By Alex Stein

Oregon has a statute capping noneconomic damages recoverable in medical malpractice suits at $500,000.

The Oregon Supreme Court decided that this cap is unconstitutional insofar as it clashes with a person’s right to recover full jury-assessed compensation for injuries recognized as actionable in 1857 when Oregon adopted its constitution. Specifically, it ruled that Article I, sections 10 and 17, of the Oregon Constitution entrench this right and deny the legislature the power to curtail it: see Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001), and Hughes v. PeaceHealth, 178 P.3d 225 (Or. 2008). This ruling separated the constitutionally protected pre-1857 causes of action, which the statutory cap cannot curtail, from the constitutionally unprotected causes of action that came into existence after 1857 and that can consequently be capped.

Consequently, in order to reduce a jury’s award of noneconomic damages to $500,000, the defendant must show that the plaintiff’s complaint was not actionable before 1857. To adjudicate such claims, courts must carry out an historical investigation into Oregon’s medical malpractice law.

The Court’s most recent decision on that issue, Klutschkowski v. Oregon Medical Group, — P.3d —-, 2013 WL 5377913 (Or. 2013), made this task easy to perform.

This decision reviewed a jury verdict obligating an obstetrician, who delivered the plaintiffs’ baby, to pay the plaintiffs (inter alia) $1,375,000 in noneconomic damages. The jury based this verdict on the following facts: the baby was too big to be delivered vaginally; the obstetrician therefore ought to have delivered the baby by a C-section; the vaginal delivery and the McRoberts maneuver carried out by the obstetrician caused the baby brachial plexus injury that impaired his use of one of the arms.

The obstetrician asked the trial court to cap the plaintiffs’ noneconomic award at $500,000. He claimed that the error the jurors found him responsible for was not actionable before 1857 and that babies born at that time also could not sue doctors responsible for their delivery. The Oregon Supreme Court disagreed: it held that it was enough for the plaintiffs to show that medical malpractice was recognized as a cause of action in the pre-constitution period. Because medical malpractice was generally actionable at that time, capping the jury’s $1,375,000 award at $500,000 would have been unconstitutional.

This decision makes Oregon’s cap ineffectual in the vast majority of medical malpractice cases. The cap provision will only apply in a small category of cases that involve violations of the patient’s right to give her informed consent to a noninvasive procedure or treatment. In the pre-constitution era, the right to informed consent did not extend to noninvasive treatments and procedures. Importantly, damages for informed-consent violations recoverable in cases in which the underlying procedure or treatment was invasive will not be capped. In those cases, an aggrieved patient can sue the doctor for assault, which she could also do before 1857. Assault has been actionable in torts since very early days.

2 thoughts to “Oregon’s Unfulfilled Tort Reform”

  1. Assault and battery have been actionable since early days, but informed consent isn’t quite a battery – the claim in informed consent is not that there was no consent, as it would be for the intentional tort, but that the consent was flawed because it was based on incomplete or inaccurate information. I don’t think that was a cause of action anywhere in the U.S. before Salgo v. Leland Stanford Jr. University, 154 Cal.App.2d 560 (1957), even for invasive treatments. So I’m not sure those cases would actually be excluded from the cap. Doesn’t detract from the importance of this decision, though.

    1. Not quite: see classic Cardozo’s decision Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914) (“a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”) (citing old nineteenth century cases that cite even older cases attesting that the tort of assault and battery need not be intentional). The origin of this doctrine was trespass, as explained by Judge Cardozo (as he was then) in the Schloendorff case; see also Gregory’s classic piece, Trespass to Negligence to Absolute Liability, 37 Va. L. Rev. 359 (1951).

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