Oregon bill could increase maximum allowable liability limits

The Oregon Senate Judiciary Committee is considering increasing the maximum liability limits that may be awarded for damage claims against government agencies. Meanwhile, the state Supreme Court is evaluating arguments on whether the Oregon Legislature can constitutionally limit the amount of damages that a person injured by medical malpractice can receive from a government agency in Jordaan Michael Clarke, Sari Clarke, Appellant v. Oregon Health Sciences University et. al.

According to the case, Jordaan Michael Clarke was diagnosed with a congenital heart defect in 1998. Following surgery that year to repair the defect, the plaintiff was placed in an intensive care unit at Oregon Health and Science University. A problem with the endotracheal tube that was supplying Clarke with oxygen caused prolonged oxygen deprivation, which caused permanent brain damage.

Consequently, Clarke’s family sued the university seeking damages, and also brought individual claims against the five doctors treating him, claiming that the brain damage was a result of their negligence.

OHSU admitted negligence, but substituted itself for the doctors, limiting the liability that could be collected to $200,000 instead of more than $12 million.

Oregon statute allows agencies to substitute themselves for individual employees as a single defendant in work-related claims. OSHU argued that it is a state-created entity performing state functions, therefore qualified for the substitution.

However, in July 2006, the Court of Appeals decided that capping the damages and allowing the substitution “deprived him [the plaintiff] of a remedy.”

OSHU appealed, and the Supreme Court heard arguments in January. No decision has been issued yet.

Nevertheless, the Senate Judiciary Committee is addressing part of the issue, by considering proposals that would increase the maximum amount for jury awards. Currently, the limits, as set in 1987, are $50,000 for property damage, $100,000 for economic and non-economic damages, and $500,000 for all claims arising from a single incident.

Proponents of the bill suggest that the liability limits should be raised to reflect inflation. One proposal suggested increasing the economic and non-economic damages limit to $500,000.