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Green, Ashbel. High Court lifts limit on OHSU Liability”. The Oregonian (December 29, 2007) Pg. A01 The Oregon Supreme Court ruled Friday that the family of a brain-damaged child can pursue millions of dollars from Oregon Health & Science University, opening the door for people hurt by any public employee to seek full compensation for their injuries.

The court ruled that a liability cap of $200,000 designed to protect government agencies from expensive lawsuits violates the constitutional rights of Jordaan Michael Clarke, 9, who suffered permanent brain damage in 1998 while in intensive care at OHSU Hospital. "We're just thankful that there is justice for my son," said Sari Clarke, the boy's mother.

The impact of the ruling goes far beyond the Clarke case, which heads back to Multnomah County Circuit Court. The ruling could cost the state up to $75 million per biennium in lawsuit payouts, predicted Terri Sahli, Oregon's risk manager.

The decision extends beyond OHSU and state agencies, affecting all local governments, school districts and special districts in Oregon. There was no immediate estimate on potential local costs because there are so many public agencies covered by the ruling. The decision cannot be appealed, but the majority opinion by Chief Justice Paul J. De Muniz left open the possibility that the Legislature could satisfy the Oregon Constitution by raising the caps.

In a concurring opinion, Justice Thomas Balmer went further: "The arbitrarily low cap on damages for medical malpractice claims against OHSU and its employees is a problem that has long called for a legislative solution," Balmer wrote. "In my view, the Legislature should, at least for medical malpractice claims, increase the existing claims limit substantially and immediately and, perhaps, retroactively."

Sen. Ginny Burdick, D-Portland, said the Legislature earlier this year looked at raising the caps to between $1 million and $2 million but couldn't reach an agreement that satisfied various groups, including trial lawyers and OHSU. "The one thing that everyone can agree on," Burdick said, "is that the caps that exist now are not realistic." Senate President Peter Courtney, D-Salem, said he didn't know whether the Legislature would take another run at adjusting the caps when it meets in February.

"I'd like to raise the caps," Courtney said. "The question is: Can we build the consensus that we need to make it happen?" The case drew unusual attention --11 "friend of the court" briefs were filed by lawyers representing cities, counties, special districts, schools, physicians, attorneys and businesses.

Portland, for example, receives about 800 claims a year for injuries or property damage by caused city employees, but few of the demands exceed the liability caps, said John Buehler, a senior claims analyst in the office of risk management. Tom Steenson, an attorney who handles civil rights suits against the police and employment cases, said he did not expect the ruling to significantly help his clients. "There are frankly not that many cases where the caps come into play --not in the police area," Steenson said.

Multnomah County Attorney Agnes Sowle said the biggest impact would likely be on health care providers. The county provides health services for the poor and medical care for jail inmates. But Sowle said that she had never seen a lawsuit against the county that was anything like the Jordaan Clarke lawsuit, which seeks $17 million. "We just haven't had any case that I'd even consider a million-dollar case," she said.

Technically, the Supreme Court ruling did not void the liability caps, which include $50,000 for property damage suits, $200,000 for personal injury cases and $500,000 for cases involving multiple plaintiffs. Rather, the court said OHSU could not use the $200,000 cap to avoid the liability of the medical staff named in the lawsuit. The ruling also took pains to say that it was only directly addressing Jordaan Clarke's case, noting the disparity between the cap and the boy's medical costs.

De Muniz said that in Jordaan Clarke's case, the cap "emasculated" his constitutional right to recover damages for the injuries he suffered. Bill Gaylord, a Portland attorney representing the family, said Jordaan Clarke has severe brain damage. He can't walk. He can't communicate," Gaylord said. "It's fair to say that he has no ability to do anything at all for himself."

The boy's family, Clark County residents, are on public assistance in Washington and are full-time caregivers, he said. At a news conference Friday morning, Jordaan appeared with his mother and grandmother. Sitting in a wheelchair, he breathed loudly and laboriously. Sari Clarke, tearing up as she spoke, said money might bring her son some comfort in his care, but it would not restore the life he lost. "My son would be playing," she said. "He would be running and playing."

APPELATE COURT DECISION:

Green, Ashbel, and Michelle Roberts, “OHSU loses liability cap in suit”. The Oregonian (July 6, 2006). Pg. A01 The Oregon Court of Appeals on Wednesday ruled that the family of a brain-damaged child could seek millions of dollars despite a state law that limits Oregon Health & Science University's liability to $200,000. The unanimous decision restarts a lawsuit on behalf of Jordaan Michael Clarke, whose family sued for more than $17 million after the boy suffered permanent brain damage in 1998 while in intensive care at OHSU Hospital.

A state law limits jury awards against public agencies such as OHSU --in this case $100,000 in general damages and $100,000 in special damages. But the Court of Appeals ruled that while such limits protect public agencies, they do not protect the public employees of those agencies. If they did, the court ruled, the limits would violate an injured person's constitutional right to seek a full remedy from negligent public employees. And because state law requires government agencies to pay awards against their employees, the ruling effectively eliminates the cap protecting public agencies.

OHSU officials say they intend to appeal, saying that the ruling threatens to cost the university millions of dollars in increased medical malpractice premiums. They also point out that the decision reaches far beyond OHSU. The decision "has enormous implications for the state and all other public bodies in the state --cities, school districts, counties, ports --as well as OHSU," hospital officials said in a statement. "We expect that for public bodies as a whole the total impact will be in the range of tens of millions to hundreds of millions of dollars."

But for the family of the brain-damaged boy, the ruling was about basic fairness. "We hope this means that someday we will have the resources to take care of Jordaan the way he deserves to be cared for," said Eva Diseth, Jordaan's grandmother and one of his primary caregivers.

A few months after his birth at OHSU, Jordaan Clarke was readmitted for surgery to repair a congenital heart defect. After doctors repaired the heart defect, they placed him in a surgical intensive care unit at OHSU where he suffered "prolonged oxygen deprivation causing permanent and profound brain damage," according to the Court of Appeals ruling.

A negligence suit filed against OHSU claimed that Jordaan was "totally and permanently disabled, essentially unaware of his surroundings, permanently unable to communicate with other persons, probably cortically blind, quadriplegic, epileptic, spastic, uneducable, and totally permanently dependent on care-givers for all aspects of daily activities and life care," according to the Court of Appeals ruling.

The suit sought $11,073,506 for "permanent total life and health care," $1.2 million in lost earning capacity and $5 million for pain and suffering. The lawsuit named OHSU and the medical professionals responsible for his care, but a judge agreed that under state law, the suit could only move forward against the university. OHSU then invoked an Oregon law that limited damages to $200,000 in the case.

The Court of Appeals agreed that the damage cap applied to OHSU, a public entity. But the court said it was unconstitutional to prevent the suit from seeking the full damages against the individual employees. The reasoning, the court said, is that the state constitution requires that ". . . every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

When OHSU substituted itself for the actions of its employees, it "emasculated" the Clarkes' constitutional remedy, the court said.

Most states limit liability. Bill Gaylord, lead attorney for the plaintiffs, praised the ruling. "We have said from the beginning that the Oregon Constitution gives citizens a right to a remedy when they've been wronged," Gaylord said. "A state that immunizes its workers from lawsuits is a violation of that right. I'm not surprised that that's what the court says, too."

Most states limit the liability of government agencies and their employees. Thirty-eight states have damages caps that apply in a variety of ways. OHSU officials say the effective elimination of Oregon's liability cap would have serious fiscal implications. Last month, an insurance brokerage firm hired by the hospital determined that it could expect to pay about $14.5 million a year in added malpractice insurance premiums and to settle and administer claims without limits on damage awards.

The firm, Chicago-based Aon Corp., said OHSU also could expect to pay additional one-time costs of $19.7 million to cover medical malpractice claims currently pending against the hospital. The study's authors cautioned that its cost estimates hinge on a number of assumptions, including whether OHSU would face more lawsuits without the cap and whether cases might settle or go to a jury.

Malpractice premium estimates. Aon estimated that OHSU's incremental annual cost increase could range from $8.7 million a year in a best-case scenario to $43 million in a worst-case situation. The range for one-time costs is $14 million to $50 million.

Figures provided earlier this year by OHSU show that between 1995 and 2005, the hospital paid out $4.4 million --an average of less than $100,000 --to settle cases that collectively sought tens of millions of dollars. Although the decision applies to all public agencies, most state and local officials said they were not yet prepared to discuss the potential impact.

Like others, Senate President Peter Courtney, D-Salem, said he had not read the opinion. But he was concerned about its potential effects. "Obviously, legislative counsel is going to have to look very carefully at it," Courtney said. "I need to know how far-reaching this is going to be."

FINAL OUTCOME:

Har, Janie. “Bill Raises Oregon Malpractice Cap”. The Oregonian (April 7, 2009)

SALEM --Lawmakers voted Monday to increase the maximum amount Oregon government can pay in cases of medical malpractice and other negligence by public employees. The House voted 50-8 in favor of the bill, which dramatically increases the old cap of $200,000. Senate Bill 311 now goes to Gov. Ted Kulongoski for his signature.

All no votes came from Republicans. Several said they didn't feel the bill went far enough in addressing runaway malpractice insurance costs in the private sector. "We couldn't get that all fixed in this bill," said Rep. Jeff Barker, D-Aloha, chairman of the House Judiciary Committee. "This is a step in the right direction."

The legislation calls for a two-tier system. The damages limit for state agencies ranges from $1.5 million to $3 million and increases to $2 million to $4 million after five years. The caps for cities, counties, school boards and other local entities would start at $500,000 per claim and $1 million per incident.

After that, the numbers would be indexed for inflation. Oregon's liability limits have stayed unnaturally low for years with trial lawyers and Oregon Health & Science University unable to compromise.

In late 2007, the state Supreme Court essentially threw out the caps in a ruling against the teaching and research hospital, prompting the revision now on its way to the governor.

"The governor's been personally involved with working toward a resolution on this issue, and he's very pleased to see the Legislature and stakeholders move quickly to bring closure to this," said his spokeswoman, Anna Richter Taylor.