In its one-hundred-forty-one page decision filed on May 5, 2016, the Supreme Court of the State of Oregon (“Oregon Supreme Court”) overturned the $12 million medical malpractice verdict reached by an Oregon medical malpractice jury against the State of Oregon and its employees, and instead applied the $3 million cap on damages against public entities as set forth in the Oregon Tort Claims Act (“OTCA”), finding that the OTCA was constitutional. The Oregon Supreme Court overturned its prior appellate court case that had held that caps on noneconomic damages for common law claims were unconstitutional.
The Underlying Facts
The plaintiff’s six-month-old son developed a cancerous mass on his liver that led to two doctors at Oregon Health & Science University (“OHSU”) operating on the child to remove the mass. During the surgery, the defendant surgeons unintentionally transected blood vessels going to the child’s liver which resulted in the child having to undergo a liver transplant, removal of his spleen, additional surgeries, and lifetime monitoring due to the risks resulting from the defendants’ negligence.
The plaintiff filed her Oregon medical malpractice lawsuit on her son’s behalf against the defendant surgeons, OHSU, and a pediatric surgical practice. The defendant pediatric surgical practice was granted summary judgment, and one of the defendant surgeons was dismissed as a result of an agreement among the remaining parties. The parties further agreed that the remaining defendant surgeon and OHSU would admit liability for the child’s injuries and that the Oregon medical malpractice jury would determine the amount of the child’s damages.
The Oregon medical malpractice jury found that the plaintiff’s son had sustained and will sustain economic damages in the amount of $6,071,190.38 and noneconomic damages in the amount of $6,000,000. The defendants filed a motion to reduce the jury’s verdict to $3,000,000, based on the OTCA. The trial court granted the motion as to OHSU, reasoning that because sovereign immunity applies to OHSU, the legislature constitutionally may limit the damages for which OHSU is liable.
However, the trial court denied the motion as to the defendant surgeon, ruling that that the OCTA cap on damages as it applied to the defendant surgeon violated the remedy clause of Article I, section 10 of the Oregon Constitution (which limits the legislature’s substantive authority to alter or adjust a person’s remedy for injuries to person, property, and reputation) and violated the jury trial clauses of Article I, section 17 (which guarantees a jury trial in those classes of cases in which the right to a jury trial was customary at the time the Oregon Constitution was adopted and in cases of like nature), and Article VII (Amended), section 3 of the Oregon Constitution, and, accordingly, the trial court entered a limited judgment against the defendant surgeon for all the damages that the jury had awarded. The defendant surgeon appealed.
Article I, Section 10
The Oregon Supreme Court stated that within constitutional limits, the legislature has authority to alter a common-law duty or condition the procedural means of recovering for a common-law injury. The Oregon Supreme Court stated: “we can find little evidence that the cases viewed remedy clauses as locking common-law rights in place. Rather, they reflected the proposition that legislatures may adjust the parties’ common-law rights and remedies as long as the legislation did not apply retroactively and thus interfere with a party’s vested rights. They also recognized that the legislature may substitute one remedy for another, even though the new remedy effectively limited common-law rights. And they were consistent with the generally accepted nineteenth century proposition that, although the legislature could substitute one remedy for another, it could not deny a remedy completely.”
The Oregon Supreme Court further stated: “As our early cases recognized, common-law causes of action and remedies provide a baseline for measuring the extent to which subsequent legislation conforms to the basic principles of the remedy clause—ensuring the availability of a remedy for persons injured in their person, property, and reputation. As our early cases also recognized, however, the common law is not inflexible but changes to meet the changing needs of the state … the remedy clause does not protect only those causes of action that pre-existed 1857, nor does it preclude the legislature from altering either common law duties or the remedies available for a breach of those duties.”
The Oregon Supreme Court stated, “in deciding whether the legislature’s actions impair a person’s right to a remedy under Article I, section 10, we must consider the extent to which the legislature has departed from the common-law model measured against its reasons for doing so … the substantiality of the legislative remedy can matter in determining whether the remedy is consistent with the remedy clause. When the legislature does not limit the duty that a defendant owes a plaintiff but does limit the size or nature of the remedy, the legislative remedy need not restore all the damages that the plaintiff sustained to pass constitutional muster, but a remedy that is only a paltry fraction of the damages that the plaintiff sustained will unlikely be sufficient.”
In the case it was deciding, the Oregon Supreme Court held that it falls into the second category of cases: that is, the legislature did not alter the duty that OHSU doctors owe their patients to exercise due care. However, the OTCA, as amended, limits a plaintiff’s remedy for a breach of that duty as part of a comprehensive statutory scheme intended to extend benefits to some persons while adjusting the benefits to others. Moreover, the OTCA seeks to accommodate the state’s constitutionally recognized interest in sovereign immunity with a plaintiff’s right to a remedy.
The Oregon Supreme Court stated that the OTCA accommodates the state’s constitutionally recognized interest in asserting its sovereign immunity with the need to indemnify its employees for liability that they incur in carrying out state functions. Moreover, the OTCA gives plaintiffs something that they would not have had if the state had not partially waived its immunity. The act ensures that a solvent defendant will be available to pay any damages up to $3,000,000—an assurance that would not be present if the only person left to pay an injured person’s damages were an uninsured, judgment-proof state employee.
The Oregon Supreme Court held that given the legislature’s efforts to accommodate the state’s constitutionally recognized interest in sovereign immunity and a plaintiff’s constitutional right to a remedy, it cannot say that the $3,000,000 tort claims limit on damages against state employees is insubstantial in light of the overall statutory scheme, which extends an assurance of benefits to some while limiting benefits to others (“We recognize that the damages available under the Tort Claims Act are not sufficient in this case to compensate plaintiff for the full extent of the injuries that her son suffered. However, our remedy clause cases do not deny the legislature authority to adjust, within constitutional limits, the duties and remedies that one person owes another. That is particularly true when the legislature seeks to accommodate the state’s constitutionally recognized interest in sovereign immunity and a plaintiff’s constitutionally protected right to a remedy and when the remedy that the legislature has provided ‘represents a far more substantial remedy than the paltry fraction that remained after the imposition of the limitation in Clarke.'”)
The Oregon Supreme Court warned, however, that “Our holding today is limited to the circumstances that this case presents, and it turns on the presence of the state’s constitutionally recognized interest in sovereign immunity, the quid pro quo that the Tort Claims Act provides, and the tort claims limits in this case. We express no opinion on whether other types of damages caps, which do not implicate the state’s constitutionally recognized interest in sovereign immunity and which are not part of a similar quid pro quo, comply with Article I, section 10. Those cases are not before us, and we leave their resolution to the customary process of case-by-case adjudication.”
Article I, Section 17
The Oregon Supreme Court stated, “Whatever other constitutional issues a damages cap may present, a damages cap does not reflect a legislative attempt to determine a fact in an individual case or to reweigh the jury’s factual findings. Rather, a statutory cap is a legal limit on damages that applies generally in a class of cases … we conclude that Lakin should be overruled. The text of Article I, section 17, its history, and our cases that preceded Lakin establish that Article I, section 17, guarantees litigants a procedural right to have a jury rather than a judge decide those common-law claims and defenses that customarily were tried to a jury when Oregon adopted its constitution in 1857, as well as those claims and defenses that are ‘of like nature.’ However, that history does not demonstrate that Article I, section 17, imposes a substantive limit on the legislature’s authority to define the elements of a claim or the extent of damages available for a claim … Neither the text nor the history of the jury trial right suggests that it was intended to place a substantive limitation on the legislature’s authority to alter or adjust a party’s rights and remedies.”
The Oregon Supreme Court held, “We conclude that applying the Tort Claims Act limit to plaintiff’s claim against defendant does not violate the remedy clause in Article I, section 10, nor does giving effect to that limit violate the jury trial clauses in Article I, section 17, or Article VII (Amended), section 3.”
A dissenting opinion stated: “Together, Article I, section 10, and Article I, section 17, ensure that an individual who suffers personal injury will have legal remedy for that injury, and that a jury will determine the extent of that injury and the monetary sum necessary to restore it. Together, those two provisions place coherent constitutional limitations on legislative action: The remedy clause precludes the legislature from denying remedy for personal injury, and the right to jury trial precludes the legislature from eliminating or interfering with the jury’s role in restoring that injury. But those two provisions also do more. They define what we mean when we use the word justice, and they make jurors its defender … Today, the majority not only deprives the Horton family of the right to the restorative remedy that the jury awarded, it also bargains away and belittles two constitutional provisions designed to guarantee justice for all.”
Source Horton v. Oregon Health And Science University, 359 Or 168 (2016)
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