Legislature missed tort issue

By Mike Bandy

The Oregon Legislature should have tackled the issue of tort cap liability during its recently concluded special session. The state tort cap should have been — along with the situation at Oregon State Hospital — a “don’t go home without it” issue.

Unfortunately, it’s easy to think of the tort cap issue as “an OHSU problem” and of OHSU as being “a Portland issue.” Many do not understand that the Oregon Health & Science University maintains more than 200 community service programs that bring health and education services to all 36 Oregon counties. Thus, even within the context of OHSU, the tort cap limit is a statewide problem. While OHSU’s ability to provide excellent overall medical care won’t suffer, specific programs are at risk of disappearing — programs ranging from an urban dental clinic in Portland (which generally services AIDS patients and low-income clients) to any number of rural health programs statewide.

A quick disclaimer: we freely admit a vested interest. We are Local 328 of the American Federation of State, County and Municipal Employees (AFSCME), and we represent over 4,500 workers at OHSU. It was an OHSU-based medical malpractice case that brought about the Oregon Supreme Court’s recent decision throwing out the state’s old $200,000 tort cap limit. As a result, the University faces millions of dollars in increased insurance costs. Those increased costs translate to cutbacks elsewhere at OHSU — specifically, layoffs. As many as 100 people in our bargaining unit alone, and another 100 currently vacant positions that will go unfilled. Management, unrepresented positions and areas represented by other unions will be impacted as well.

The underreported fact about the Supreme Court decision is that it potentially impacts every public employer in Oregon. The spotlight was on OHSU because the deciding case was from here and it was a medical malpractice case — a situation one of our union attorneys described as “the worst possible test case” for Oregon’s tort limit law. But all public agencies are now at risk, including state agencies, public health clinics, K-12 schools, public colleges and universities, cities, counties, police and fire departments, as well as transit agencies and other public corporations. Today a single mistake or accident could potentially bankrupt a small community. A school bus accident, a bridge collapse, or an injury to an elite college athlete could lead to a large judgment in an uncapped environment.

Perhaps what’s most frustrating is that, in general terms, it’s seems fairly easy to identify the solution. In an age where medical-related lawsuits can quickly jump to six- and seven-figure settlements, it’s time to establish two separate tort limits for Oregon jurisdictions — one for medical malpractice (and related) suits, and one for all others. This solution allows all jurisdictions to remain covered at a cost reasonable to that jurisdiction.

Rather than act quickly, the Legislature decided to form an interim task force. Our union will diligently bird-dog this tort reform task force. We urge others to become involved as well. We’ll cross our fingers and hope for no catastrophic cases in the next 10 months. Beyond that, the task force should have one simple goal: new tort cap legislation that’s ready for Day 1 of the 2009 Oregon Legislature.

Mike Bandy is President of Oregon AFSCME Local 328
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