Tag Archives: Oregon


Oregon Supreme Court Strikes Down Noneconomic Damage Cap

The Oregon Supreme Court last month invalidated statutory limits on noneconomic damages for personal injury claims. The high court ruled that the cap enacted by the legislature in 1987 violates the legal remedy clause of the Oregon Constitution. The decision affirmed an appeals court’s reversal of a trial court ruling on an award for a plaintiff who sustained catastrophic injuries after being run over by a garbage truck.

According to the 5-2 decision, the cap violated Article I, Sec. 10, of the state constitution, commonly referred to as “the remedy clause,” which states “every man shall have remedy by due course of law for injury done him in his person, property or reputation.”

In the case Busch v. McInnis Waste Systems Inc., the initial trial court reduced a $10.5 million noneconomic damage award to $500,000 in keeping with Oregon’s noneconomic damage limit. A court of appeals reversed the trial court, determining that the statute violated the remedy clause of the Oregon Constitution because it results in a “bare reduction” of noneconomic damages awards for “grievously injured” plaintiffs without a quid pro quo benefit. The Oregon Supreme Court agreed.

“In enacting the damages cap, the Legislature left defendants’ common-law duty of care intact, but deprived injured plaintiffs of the right to recover damages assessed for breach of that duty … ” Chief Justice Martha Walters wrote for the court majority. “The Legislature must act for a reason sufficient to counterbalance the substantive right that [the remedy clause] grants. That right assures that people who are injured in their person, property or reputation have a remedy for those injuries. Oregon law has long recognized and protected that substantive right.”

Attorneys for the Oregon Medical Associa-tion, the American Medical Association and the American College of Obstetricians & Gynecol-ogists filed an amicus curiae brief in support of the noneconomic damage cap.

“The limit on noneconomic damages for personal injury actions is constitutional; it is an appropriate, not arbitrary, action by the legislature to further an important public interest, and it should not be disturbed by the court,” wrote the attorneys representing the healthcare organizations. “The legislature must be given latitude to enact reforms to address the changing needs and circumstances of our healthcare system, including how patients injured by medical negligence are compensated. The rule of law announced will affect possibilities for continued healthcare reform, and, as evidence before the legislature just this year showed, the very availability of healthcare for those who need it most.

“The defendant in this case happens to be the owner of a garbage truck; however, it could very well be another type of essential service provider such as a doctor, dentist, or day care provider. The rule of law framed in this case will affect how ORS 31.710(1) is applied in negligence actions against medical providers, and many others. There are real implications, not just in litigated claims and exposure, but in Oregonians’ access to essential services, including healthcare.”

While the court in its ruling noted that its decision is limited to circumstances that this case presented, and that it expressed no opinion on whether damages caps in other cases comply with the section of the Oregon constitution in question, the decision in Busch v. McInnis Waste Systems Inc. marks a continued erosion of tort reforms at the hands of the state judiciary. Last year, the Oregon Supreme Court declared a portion of the state’s pre-litigation medical malpractice review panel process under the Utah Health Care Malpractice Act unconstitutional, determining that it violated the separation of powers doctrine (see MLM, August 2019).

Cigarettes by prescription-only? Would you prescribe if a patient asked you?

A bill in the Oregon State Legislature, proposed by Rep. Mitch Greenlick of Portland, would make cigarettes available by prescription only and classify them as a Schedule III controlled substance.  This means that they would be illegal to possess or distribute cigarettes…….without a doctor’s prescription.  We don’t think this has any chance of passing, but if you’ve been to Portland, you do know that this is an area of the country that could be the first to do this.  There are a few of us here that vacation in Portland and other parts of the Pacific NW, and realize that the show Portlandia is not far from the truth!  (We have to add that we LOVE Portland and the people there!)

Do you think this is the next step in ridding our society of cigarettes?  Or do you think this would lead to a black market where you would have to find some shady fellow to buy your pack of Marlboros?  Would you prescribe cigarettes to your patients if you were asked?

From our standpoint, we do not see this has a malpractice insurance issue b/c we typically don’t see insurance carriers worrying about prescribed drugs…..unless the doctor is operating a pill-mill.  We’d love to hear your thoughts!

Oregon Governor Promises Medical Malpractice Tort Reform in 2013

Last year, the Oregon legislature voted to create an Oregon Health Insurance Exchange as called for under the federal Patient Protection & Affordable Care Act. That legislation almost didn’t pass, as lawmakers argued over whether or not medical liability tort reforms, including a cap on non-economic damages, would be part of the new law.

The tort reforms desired by the Oregon Republican Party did not make it into the Insurance Exchange bill, but Gov. John Kitzhaber promised medical liability reforms would be addressed in the near future. The near future appears to be the 2013 legislative session.

Gov. Kitzhaber recently announced that he had commissioned a work group that includes lawmakers, a trial lawyer and a physician, which will be tasked with crafting a medical liability reform proposal. The process will be conducted with transparency; the work group having public meetings that started this week.

Gov. Kitzhaber did release his proposal in advance of the work group’s public meetings. The proposal would let a physician explain to a harmed patient exactly what happened and offer an apology if warranted. Within 90 days, the physician or hospital could then make an early offer of compensation as well as plans to ensure the error does not occur in the future. Similar to Oregon’s existing “apology in medicine” legislation, these admissions would not be admissible in court should the patient choose to go to court for remedy. If the injured patient refuses the early offer, the case would go to mediation. Only after mediation has been exhausted would the case be allowed to go to trial. Kitzhaber had been meeting with representatives from the Oregon Medical Association and the Oregon Trial Lawyers Association behind closed doors to hash out his proposal. Notably missing from Gov. Kitzhaber’s proposal is a non-economic damage cap.

Momentum seems to be behind medical malpractice tort reform in the next year. Check back often to follow the progress.

Oregon and Tort Reform Again

Side Note: If at first you don’t succeed, try, try again. Hopefully, that will be the case with the state of Oregon when it comes to tort reform. Just this past year, the state introduced two bills: one that would establish a cap on non-economic damages and another that would establish a panel to review med mal cases that were pending. Unfortunately, both bills went nowhere. But, there is renewed hope.

Oregon Republicans are once again calling for med mal tort reform. The subject was raised recently via the Joint Committee on Health Care Transformation and discussions about the Oregon Health Plan. (However, if any tort reform takes place, it would have to apply to all Oregonians, not just those covered under the Oregon Health plan.) Maybe after decades of failed attempts, Oregon will finally see significant med mal reform. We will keep you posted.

As we know, good tort reform can accomplish many things. First, it can save physicians significant time and money if they are taken to court. Second, it can help reduce the practice of defensive medicine, which in turn, can lower healthcare costs. Finally, it can often help to lower med mal insurance costs. And, we here at MyMedicalMalpracticeInsurance.com know that our physicians would like to lower their Oregon med mal insurance costs.

MyMedicalMalpracticeInsurance.com may be able to lower your Oregon physician liability policy rates. Contact us today for a free, no-obligation quote.

Tort Reform Or Else
By: David Rosenfeld
From thelundreport.org

Unhappy Oregon DoctorApril 21, 2011 — Republicans on a joint committee charged with transforming the Oregon Health Plan made their first bold move Wednesday night saying without medical malpractice reform they can’t support one of Governor John Kitzhaber’s signature proposals this legislative session.

A first draft of a bill emerged this week in the Joint Committee on Health Care Transformation that’s attempting to incorporate eight weeks of recommendations from a broad group of bi-partisan legislators and industry stakeholders. The aim is to deliver better, more efficient care with less money for the Oregon Health Plan and other essential human services.

This is where you can find the original article.

Oregon to Re-join States with Caps?

Side Note: Oregon physicians once knew what is was like to practice medicine with caps on med mal lawsuits –and then they didn’t. But, maybe they will again?

Gov. John Kitzhaber is in the midst of a broad health care overhaul for the state of Oregon. And, currently his “transformation team” is working to convert his recommendations into legislation. One such undertaking is House Bill 3228 which is proposing “pain-and-suffering” caps on med mal damage awards. Specifically, the bill places a limit of $500,000 on noneconomic damages. A similar limit was in place in Oregon from 1987-1999. However, the Oregon Supreme Court deemed such limits unconstitutional. Thus, this new bill faces a major uphill battle and is unlikely to go anywhere. This is especially so given the fact that in 2000 and 2004 Oregon voters rejected efforts to reinstate such caps.

Former Oregon Medical Association President, Dr. Peter Bernardo, anecdotally said that his Oregon liability premiums have tripled in the years since the cap removal. We here at MyMedicalMalpracticeInsurance.com are not surprised. To us, caps have proven to be an effective way to contain med mal insurance costs. We track liability insurance rates by state for physicians across several specialties every year and have done so since 2000. Check out the Oregon physician liability insurance rates data that we have.

As physician advocates, we support efforts to keep your costs down and your liability exposure limited. That is why we work with all of the med mal companies in Oregon. Quite simply, they compete against each other for your business, and therefore, offer you their lowest rates.

Are you an Oregon physician looking to lower your Oregon physician liability rates? If so, fill out our free, no-obligation quote request today.

Panel considers ‘pain-and-suffering’ cap
Bill would put limit on noneconomic medical damages
By Peter Wong from Statesman Journal
2:04 AM, Mar. 31, 2011

A House committee gave an initial hearing Wednesday to a proposed cap on noneconomic damages awarded to patients who sue doctors and hospitals.

But even the committee co-chairman, who is its chief sponsor, said House Bill 3228 is unlikely to go anywhere by itself.

Read the original piece.