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The Law of Medical Malpractice in Oregon:

A Survey of Basic Considerations

Oregon medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Oregon are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Oregon exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Oregon by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Oregon medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Oregon. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through X examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Oregon.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Oregon?
-Required Elements of a Medical Malpractice Claim in Oregon
-Introduction
-The Four Basic Elements
-Duty
-Standard of Care and Breach
-Causation
-Oregon Supreme Court Recognizes Loss-of-Chance Theory of Injury

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Oregon
-The Discovery Rule
-Introduction
-The Discovery Rule in Oregon
-Tolling for Minors and Disabling Mental Condition
-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Oregon

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Oregon
-Limitations on Damages
-Actions Under Oregon Tort Claims Act
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Oregon
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

VI. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Introduction
-Admissibility of Scientific Principles and Discoveries in Oregon

VII. Modified Comparative Negligence with 51% Bar Rule

VIII. Limitations on Noneconomic Damages
-Noneconomic Damages
-Punitive Damages

IX. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Oregon

X. Apologies and Gestures of Sympathy

XI. Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Oregon?

Medical malpractice is a specific type of professional negligence by a healthcare provider. The Oregon Supreme Court observed: “Medical malpractice cases are nothing more than negligence actions against medical professionals.” Rogers v. Meridian Park Hospital, 772 P.2d 929, 932 (Or. 1989). In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in Oregon

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Oregon law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Oregon medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Four Basic Elements

In tort actions in which there is a special relationship between the plaintiff and the defendant, such as a physician-patient relationship, “the plaintiff usually must allege and prove (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of duty and the harm. [emphasis in original] Stevens v. Bispham, 851 P.2d 556, 560 (Or. 1993). The Oregon Supreme Court explicitly applied the four basic elements of a professional negligence action articulated in Stevens to a medical malpractice claim in Zehr v. Haugen, 871 P.2d 1006, 1010 (Or. 1994). In Zehr, the Supreme Court expressed the necessary elements of a medical malpractice claim as follows:

  1. Duty—a duty that runs from the defendant to the plaintiff;
  1. Breach—a breach of that duty;
  1. Harm—a resulting harm to the plaintiff measurable in damages; and
  1. Causation—a causal link between the breach of duty and the harm. Id.

Duty

The first essential element of a compensable medical malpractice claim under Oregon law is the existence of a duty owed to the injured party by the defendant. Zehr, 871 P.2d at 1009. The Oregon Supreme Court discussed the concept of duty as it pertains to negligence actions in the landmark case Fazzolari v. Portland School District No. 1J, 734 P.2d 1326 (Or. 1987). The Fazzolari Court described duty as an element of a negligence cause of action as follows:

“Duty” expresses the formal link between factual conduct and legal liability; its content must be located in the law, not in facts nor in morals, manners, or other values unless these are incorporated into law. When “duty” refers to legally obligatory conduct, it serves a person injured by noncompliance as a premise to claim a legal remedy; at other times the concept is invoked defensively to limit the reach of liability even though harm was caused by conduct falling short of a legal obligation. In either case, “duty” by definition appears as a legal issue and, if disputed, is decided by the court.

This neat division of issues is unproblematic when the substance and scope of a duty are found in legislation or in a particular common law source. But when the law (for instance negligence law) defines a duty by reference to the foreseeability of events, the questions who decides what, at which stage of litigation, and with what precedential effect become problematic…. [internal citations omitted] Id. at 1328.

In the context of medical malpractice actions, establishing the duty element is relatively straightforward in contrast to a cause of action based on general negligence where difficult legal and public policy issues regarding foreseeability play a central role in determining whether a duty exists. “[A] claim for professional negligence involves a special relationship between the plaintiff and the defendant….” Son v. Ashland Community Healthcare Services, 244 P.3d 835, 841 (Or. Ct. App. 2010). In a special relationship such as the physician-patient relationship, “the doctor has a duty to exercise ‘that degree of care, knowledge and skill ordinarily possessed and exercised by the average provider of that type of medical service.’” Id. (quoting Curtis v. MRI Imaging Services II, 327 Or. 9, 14 (1998)). Accordingly, where the plaintiff and defendant had a physician-patient relationship at the time of the alleged negligence, the duty element is established as a result of that relationship.

In fact, according to the Oregon Supreme Court, “a physician-patient relationship is a necessary predicate to stating a medical malpractice claim.” Mead v. Legacy Health System, 283 P.3d 904, 909 (Or. 2012). The Court added “without a physician-patient relationship,” there can be no duty to the plaintiff and therefore no liability. Id.

Standard of Care and Breach

Oregon has codified the required standard of care for physicians licensed to practice medicine or podiatry by the Oregon Medical Board. 2015 Oregon Revised Statutes with 2016 amendments (“ORS”) §677.095(1). It mandates that such healthcare providers have “the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community.” Id. The Oregon Supreme Court observed that the “statute essentially codified the common-law standard.” Trees v. Ordonez, 311 P.3d 848, 854 (Or. 2013). In the 1933 case King v. Ditto, 142 Or. 207, 213 (1933), the Supreme Court stated that a physician must “exercise that degree of skill and care usually possessed and exercised by those engaged in the same line of practice in similar localities.”

The general rule in medical malpractice cases is that expert testimony is required to establish the applicable standard of care and breach thereof. Getchell v. Mansfield, 489 P.2d 953, 955 (Or. 1971). The Oregon Supreme Court instructed:

expert testimony is required to establish what the reasonable practice is in the community. The conduct of the defendant professional is adjudged by this standard. Without such expert testimony a plaintiff cannot prove negligence. The reason for this rule is that what is reasonable conduct for a professional is ordinarily not within the knowledge of the usual jury. For example, would a jury know whether it is reasonable to permit tightly packed Surgicel to remain in the body? … or less esoteric, when does reasonable medical practice require that an X-ray be taken of a fractured bone which had been successfully united seven years before? [internal citations omitted] Id.

However, expert testimony is not always required to establish either the applicable standard of care or causation. Chouinard v. Health Ventures, 39 P.3d 951, 954 (Or. Ct. App. 2002). According to the Oregon Supreme Court, “if the jury is capable of deciding what is reasonable conduct without assistance from an expert medical witness no expert testimony is necessary to establish the standard of care.” Getchell, 489 P.2d at 955. The Court cited two examples from the case law where expert testimony was not need to establish the standard of care and breach thereof: (1) where a surgeon operated without sterilization of his instruments and (2) where a dentist severed a nerve when extracting a tooth. Id. at 955-956. Similarly, classic examples of cases where expert testimony is not needed include when a foreign object with no therapeutic value is inadvertently left inside the patient’s body following surgery and when the wrong limb is amputated. Expert testimony is not required in these cases because the alleged negligence is within the common knowledge and experience of a layperson.

Causation

The Oregon Supreme Court explained the causation element as follows: “Causation in Oregon law refers to causation in fact, that is to say, whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence.” Sandford v. Chevrolet Division of General Motors, 56 Or. 590, 606 (1982). The Supreme Court instructed that the applicable standard for establishing causation is that of reasonable probability. Sims v. Dixon, 224 Or. 45, 48 (1960). In Sims, the Court explained:

It is well established that the causal connection between defendant’s acts or omissions and the plaintiff’s injuries must not be left to surmise or conjecture. The proof of the material issue must have the quality of reasonable probability, and a mere possibility that the alleged negligence of the defendant was the proximate cause of plaintiff’s injuries is not sufficient. Id.

In Sims, the plaintiff’s medical expert witness could only testify to a possibility, and not a probability, that the defendant had caused the plaintiff’s injury, so the Court held that was insufficient to establish causation. Id. at 49.

Oregon courts also utilize the substantial factor causation standard. Joshi v. Providence Health System, 149 P.3d 1164, 1168 (Or. 2006). The Oregon Supreme Court clarified in Joshi that both the reasonable probability causation standard and the substantial factor causation standard are valid and in use in Oregon. Id. at 1169. The Court explained that “the two standards apply to different types of negligence cases,” i.e., cases where there is a single cause and cases where there are multiple causes. Id. “The ‘but-for’ [reasonable probability] test for causation, in which a plaintiff must demonstrate that the defendant’s negligence more likely than not caused the plaintiff’s harm, applies to the majority of cases.” Id.

However, the but-for or reasonable probability standard fails were “two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result.” Id. (quoting W. Page Keeton, Prosser and Keeton on The Law of Torts 267, §41 (5th ed. 1984) (Prosser & Keeton)). That is the situation in which the substantial factor causation standard must be used.

The Supreme Court described the substantial causation factor standard as follows: “The respective liability of multiple defendants depends on whether the negligence of each was a substantial factor in producing the complained of harm.” McEwen v. Ortho Pharmaceutical, 270 Or. 375, 418 (1974). The Court further explained that the plaintiff need not demonstrate that each defendant’s negligence was “sufficient to bring about plaintiff’s harm by itself; it is enough that [each defendant] substantially contributed to the injuries eventually suffered by [the plaintiff].” Id.

Like with the standard of care element of a medical malpractice claim, expert testimony is required to establish the causation element. Uris v. State Compensation Department, 247 Or. 420, 425 (1967). The Oregon Supreme Court in Uris noted that it is “the settled rule that where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons.” Id. at 424.

Oregon Supreme Court Recognizes Loss-of-Chance Theory of Injury

In May 2017, the Oregon Supreme Court ruled that injured parties may now bring an action for loss-of-chance at recovery as a medical malpractice action. Smith v. Providence Health & Services, 361 Or. 456 (2017). The precise question presented to the Supreme Court was: “whether Oregon law permits a plaintiff who has suffered an adverse medical outcome resulting in physical harm to state a common-law medical negligence claim by alleging that the defendant negligently caused a loss of his or her chance at recovery.” Id. at 458. The Court concluded “as a matter of first impression, that a medical negligence claim based on a loss-of-chance theory of injury in the circumstances presented is cognizable under Oregon common law.” Id. That is, the loss-of-chance at a better medical outcome itself is the injury under this theory of recovery.

The Smith case was the first time the Oregon Supreme Court addressed the issue of “whether an injured plaintiff alleging common-law medical malpractice may recover for loss of a chance at a better medical outcome.” Id. at 463. In Smith, the “defendants undertook care of plaintiff when he presented with symptoms of stroke, they breached the duty to plaintiff by performing below the standard of care, plaintiff suffered brain damage, and defendants caused him to lose a 33 percent chance at recovering from the stroke….” Id. at 466.

The Supreme Court announced “we conclude that a loss of a substantial chance of a better medical outcome can be a cognizable injury in a common-law claim of medical malpractice in Oregon.” Id. at 485. The Court instructed that “when the loss of chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant’s negligence caused the plaintiff to loss the chance of a favorable medical outcome.” Id. at 479.

The case leaves many open questions that will likely be the subject of litigation for the foreseeable future. The Court itself acknowledged that since “this case was dismissed at the pleading stage, it presents only a limited opportunity to discuss the various aspects of such a claim and the considerations in litigating a medical malpractice claim in which the plaintiff alleges the loss of a chance at a recovery or better medical outcome.” Id. at 482.

However, the Court did provide some guidance for future claims based on the newly recognized loss-of-chance theory. The Court observed:

fairness to defendants requires that plaintiff plead with specificity the lost chance of a better medical outcome. In practical terms, a plaintiff must plead the percentage and quality of his or her loss of chance, which in turn must be based on the plaintiff’s experts and relevant scientific evidence that meets the standard of reasonable medical probability. Id. at 483.

The Court also instructed “that distress—both physical and emotional—directly and foreseeably attributable to negligence involving diagnosis and treatment of a patient is recoverable under a loss-of-chance theory.” Id. at 484. “Accordingly, plaintiff may recover for both physical and emotional damages.” Id. at 485.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Oregon

The standard statute of limitations governing medical malpractice claims is contained in ORS §12.110(4). It requires a medical malpractice claim to “be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered.” Id. That is, the statute of limitations governing medical malpractice claims requires the plaintiff to commence an action within two years from the date the injury was first discovered or should have been discovered. Thus, the critical question, then, is what constitutes an “injury” for purposes of the statute.

The Oregon Supreme Court addressed the injury question in the 1994 case Gaston v. Parsons, 864 P.2d 1319 (Or. 1994). The Court noted that at the time the term ‘injury’ had not been defined by the statute in question or by applicable case law; however, it had been defined in connection with other statutes of limitations by the Supreme Court. Id. at 1322. The Gaston Court observed that after reviewing the Supreme Court’s prior decisions regarding the term ‘injury’ in connection with other statutes of limitations it “does not refer to injury in the ordinary sense—that is, physical harm. Instead, those decisions have recognized that discovery of ‘injury’ is comprised of different components, some of which are harm, identity of the tortfeasor, and causation.” Id.

After reviewing the legislative history of ORS §12.110(4) together with significant decisions interpreting the statute, the Gaston Court announced:

we hold that the legislature intended the word “injury,” as used in ORS 12.110(4), to mean legally cognizable harm. In the tort context of ORS 12.110(4), a harm is legally cognizable if it is the result of tortious conduct. Therefore, “injury,” as used in ORS 12.110(4), consists of three elements: (1) harm; (2) causation; and (3) tortious conduct. Id. at 1323.

The Court then sought to provide guidance for the application of the newly announced three-prong test.

To discover a particular element of legally cognizable harm, the plaintiff does not need to know to certainty that each particular element exists…. Actual knowledge that each element is present is not required. On the other hand, a mere suspicion is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.

We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care. In such cases, the relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation. Id. at 1324.

With respect to the tortious conduct element of injury, the Court added “a plaintiff does not need to identify a particular theory of recovery before the statute of limitations begins to run. All that is required is that the plaintiff discover that some invasion of the legally protected interest at stake has occurred.” Id. at 1338 n.8.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Oregon

Oregon’s Discovery Rule for medical malpractice claims is actually incorporated inextricably in the standard statute of limitations itself. That is, they are one and the same. As the Oregon Supreme Court pointed out, “ORS 12.110(4) was intended to codify the discovery rule announced by this court” in the 1966 Berry case. Gaston v. Parsons, 864 P.2d 1319, 1323 (Or. 1994). The Gaston Court summed up the rationale for the Discovery Rule as follows: “The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim.” Id. at 1324. The discussion in the preceding Sub-Section of this article naturally applies to any examination of the Discovery Rule since they are one and the same.

The Discovery Rule for medical malpractice claims was first adopted by the Oregon Supreme Court in Berry v. Branner, 245 Or. 307 (1966). The question before the Berry Court was “whether a cause of action for medical malpractice accrues at the time of the negligent act or omission, or at the time it was or might reasonably have been discovered.” Id. at 308-309. It answered the question thusly: “It is the opinion of this court that the cause of action accrued at the time plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant.” Id. at 314-315. The Legislature subsequently revised the applicable statute of limitations to reflect the Court’s position in Berry to its current form reflected in ORS §12.110(4).

In Berry, the Supreme Court explained its rationale for adopting the Discovery Rule as follows:

To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, “You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,” makes a mockery of the law. Id. at 312.

In 2002, the Oregon Supreme Court attempted to further clarify exactly when the statute of limitations is triggered. Greene v. Legacy Emanuel Hospital, 60 P.3d 535 (Or. 2002). The Court reiterated that the limitations period commences from the earlier of two possible events: (1) the date the plaintiff actually discovers the injury or (2) the date when a person exercising reasonable care should have discovered the injury, which includes learning facts that an inquiry would have disclosed. Id. at 539. The Court instructed that in “neither of those circumstances does the period of limitations begin to run from the plaintiff’s discovery of facts that serve only to trigger a duty to inquire about whether an injury [as defined under Gaston’s three-prong test] has occurred.” Id. “Even if a plaintiff acquires information about a” medical complication related to his or her treatment “that only would cause a reasonable person to inquire whether legally cognizable harm has occurred, the period of limitations would commence at some later point when, after inquiry, the facts reasonably should disclose the existence of an actionable injury.” Id.

Tolling for Minors and Disabling Mental Condition

The applicable statute of limitations for medical malpractice claims is tolled if “at the time the cause of action accrues the person is a child who is younger than 18 years of age….” ORS §12.160(1). The statute of limitations is tolled for as long as the person is younger than 18 years of age. Id. However, the statute of limitations may not be tolled “for more than five years, or for more than one year after the person attains 18 years of age, whichever occurs first.” ORS §12.160(2).

Similarly, the applicable statute of limitations for medical malpractice claims is tolled if “at the time the cause of action accrues the person has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know….” ORS §12.160(3). The statute of limitations is “tolled for so long as the person has a disabling mental condition….” Id. Again, however, the statute of limitations may not be tolled “for more than five years, or for more than one year after the person no longer has a disabling mental condition….” ORS §12.160(4).

Final Thoughts

The application of Oregon’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. This is especially true when the interplay between it and the five-year statute of repose (see Section III of this article) is at issue. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Oregon medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Oregon attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Oregon

Oregon has a five-year statute of repose that runs “from the date of the treatment, omission or operation upon which the action is based….” ORS §12.110(4). Oregon courts often refer to this as a statute of ultimate repose1, and it operates to “limit the ‘discovery rule’ embodied in the previous sentence of ORS 12.110(4)….” Barke v. Maeyens, 31 P.3d 1133, 1134 (Or. Ct. App. 2001). Notice that the repose period commences on the date the alleged negligence occurred and expires five years later regardless of whether the injury has been discovered within that time period by the potential plaintiff.

The statute of repose is tolled only by “fraud, deceit or misleading representation” by the defendant. ORS §12.110(4) and Gaston v. Parsons, 864 P.2d 1319, 1327 (Or. 1994). Where the statute of repose is tolled on that account, the plaintiff must commence an action “within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered.” ORS §12.110(4).

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Oregon

Oregon has waived sovereign immunity on a limited basis via the Oregon Tort Claims Act, ORS §§30.260 to 30.300. Vaugh v. First Transit, Inc., 206 P.3d 181, 187 (Or. 2009). The Oregon Supreme Court described the Tort Claims Act as follows: “The OTCA permits tort claims against public bodies, with certain limitations, and provides that the sole cause of action for any tort committed by officers, employees, and agents of a public body who are acting within the scope of their employment or duties is one against the public body.” Id. at 183-184. The Supreme Court also noted that the Act “limits the tort liability of the state and its employees to” a specified amount that increases yearly from 2010 onward as set forth in the statute. Horton v. Oregon Health and Science University, 376 P.3d 998, 1002 (Or. 2016) (referencing ORS §30.265(1) and ORS §30.271).

In permitting certain civil actions against government defendants, ORS §30.265(1) states “every public body is subject to civil action for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a government or proprietary function….” However, civil actions against individual employees of a public body is limited. In particular, ORS §30.265(3) and (4) provide the conditions under which employees may and may not be held liable individually. The Oregon Supreme Court admonished, though, that such employees are not granted immunity under the Act. Vaugh, 206 P.3d at 190 n.2. Instead, the Court instructed:

the OTCA does not, by its terms, “immunize” those persons. The effect of the OTCA is to protect an officer, employee, or agent from tort liability in certain circumstances by providing that the sole cause of action of an injured person is one against the public body and that the public body “shall be substituted as the only defendant.” Id.

The term ‘public body’ is defined in ORS §30.260(4) as meaning:

  1. State government bodies, local government bodies, and special government bodies;
  1. Any nonprofit corporation that is organized and existing under ORS Chapter 65 and that has only political subdivisions or municipal, quasi-municipal, or public corporations in Oregon as members;
  1. A private child-caring agency, as defined in ORS §418.205; or
  1. A private, nonprofit organization that provides public transportation services if more than 50% of the organization’s funding for the purpose of providing public transportation services is received from governmental bodies.

According to the Oregon Supreme Court, there three requirements that “must be met to conclude that an employee was acting within the scope of employment.” Chesterman v. Barmon, 753 P.2d 404, 406 (Or. 1988). They are: (1) whether the act occurred substantially within the time and space limits authorized by the employment, (2) whether the employee was motivated, at least partially, by a purpose to serve the employer, and (3) whether the act is of a kind which the employee was hired to perform. Id.

Limitations on Damages

The Oregon Tort Claims Act imposes caps on the amount of damages that may be recovered by a plaintiff in an action against a public body and its employees. ORS §30.271. The liability of the state and its employees acting within the scope of their employment or duties to any single plaintiff for a single occurrence is capped at $1.5 million for causes of action arising on or after December 28, 2007 and before July 1, 2010. ORS §30.271(2). The cap amount increases by $100,000 per year up until July 1, 2015. Id. The liability of the state and its employees acting within the scope of their employment or duties to all plaintiffs for a single occurrence is capped at $3 million for causes of action arising on or after December 28, 2007 and before July 1, 2010. ORS §30.271(3). The cap amount increases by $200,000 per year up until July 1, 2015. Id. The statute expressly states that “[t]he limitations imposed by this section apply to claims against Oregon Health and Science University.” ORS §30.271(5).

For causes of action that arise after July 1, 2015, the cap amounts are increased or decreased yearly based upon “changes in the Portland-Salem, OR-WA Consumer Price Index for All Urban Consumers for All Items as published by the Bureau of Labor Statistics of the United States Department of Labor.” ORS §30.271(4).

For actions against local public bodies, the caps on recoverable damages are lower than those governing actions against the state and its employees. They are set forth in ORS §30.272. The term ‘local public body’ is defined as meaning any public body other than the state. ORS §30.260(6).

Finally, punitive damages may not be awarded on any claim brought under the Oregon Tort Claims Act. ORS §30.269(1).

Actions Under Oregon Tort Claims Act

In addition to providing a limited waiver of sovereign immunity and imposing limitations on liability for damages, the Oregon Tort Claims Act sets forth strict requirements for bringing an action against a government defendant.

The first requirement of which potential plaintiffs must be aware is the Notice of Claim. ORS §30.275(1) warns that “[n]o action arising from any act or omission of a public body or an officer, employee or agent of a public body … shall be maintained unless notice of claim is given as required….” Notice of Claim must be provided within one year of the alleged loss or injury in a wrongful death action and within 180 days of the alleged loss or injury for all other claims. ORS §30.275(2).

At a minimum, the Notice of Claim must be in writing and contain:

  1. A statement that a claim for damages is or will be asserted against the public body or an officer, employee, or agent of the public body;
  1. A description of the time, place, and circumstances giving rise to the claim, so far as known to the plaintiff; and
  1. The name of the plaintiff and the mailing address to which correspondence concerning the claim may be sent. ORS §30.275(4).

The statute details various ways in which a Notice of Claim may be properly communicated to the government defendant. The plaintiff has the burden of proof that the Notice of Claim was given in accordance with the requirements of the statute. ORS §30.275(7).

The Oregon Supreme Court “held that the purpose of the Tort Claims Act notice sections is to give the public body timely notice of the tort claim and to allow its officers an opportunity to investigate matters promptly and ascertain all necessary facts.” Brown v. Portland School District No. 1, 628 P.2d 1183, 1186 (Or. 1981) (citing Urban Renewal Agency v. Lackey, 275 Or. 35, 41(1976)). Where that purpose is satisfied through substantial compliance with the statutory requirements, strict compliance with the statute will not be enforced. Id.

In Brown, the Notice of Claim was sent by first class mail and was in fact received by the defendant. However, the defendant argued that the Notice was insufficient because the statute requires the Notice be sent by certified mail and thus the claim should be dismissed. Id. at 1184. The Supreme Court rejected that argument and held that where substantial compliance satisfies the purpose of the notice requirement the Notice of Claim is valid. Id. at 1186. The Court opined that to “automatically require that the notice be sent by certified mail under these circumstances would be to ignore the purpose of the statute and to make it a mere trap for the deserving but unwary claimant.” Id.

The statute of limitations for bringing an action under the Tort Claims Act is “two years after the alleged loss or injury.” ORS §30.275(9). Medical malpractice actions brought under the Act are subject to the two-year statute of limitations in ORS §30.275(9). Humphrey v. Oregon Health & Sciences University, 286 Or. App. 344 (Or. Ct. App. 2017). A Discovery Rule applies to the statute of limitations contained in the Tort Claims Act. Smith v. Oregon Health Science University Hospital and Clinic, 356 P.3d 142, 146 (Or. Ct. App. 2015). As such, the two-year limitations period does not begin to run until the plaintiff has a reasonable opportunity to discover his or her injury and the identity of the party responsible for the injury. Id. Thus, the statute of limitation contained in the Act “begins to run when the plaintiff knows or, in the exercise of reasonable care, should have known facts that would make a reasonable person aware of a substantial possibility that each of the elements of a claim exists.” Id. at 146 (quoting Doe v. Lake Oswego School District, 353 Or. 321, 333 (2013)).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Oregon

Oregon has enacted a general Good Samaritan law that is codified in ORS §30.800. The statute provides immunity from civil liability for damages for any Good Samaritan who renders emergency medical assistance “under emergency circumstances that suggest that the giving of assistance is the only alternative to death or serious physical aftereffects.” The general Good Samaritan law covers both healthcare practitioners and laypersons who render emergency medical assistance in accordance with the provisions of the statute. There are some specific requirements that must be met for immunity to apply.

  1. The emergency medical assistance must be rendered in a location where emergency medical or dental care is not regularly available, i.e., not within a hospital, doctor’s office, or dentist’s office.
  1. The emergency medical assistance must be rendered voluntarily and without the expectation of compensation.

 

  1. The emergency medical assistance must not be rendered in a manner that constitutes gross negligence. ORS §30.800(1) and (2).

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the 838 Chapters that comprise the Oregon Revised Statutes. Below is a non-exhaustive list of some common ones that medical malpractice plaintiffs may encounter while pursuing their claim.

  • Healthcare provider for volunteer services to charitable organization—ORS §30.792
  • Use of automated external defibrillator—ORS §30.802
  • Licensed emergency medical service provider acting as volunteer—ORS §30.803
  • Emergency medical assistance by government personnel—ORS §30.805
  • Emergency transportation assistance—ORS §30.807

V. Required Elements of a Medical Malpractice Complaint

There is only one form of action in Oregon, and it is known as a civil action. Rule 2 of the Oregon Rules of Civil Procedure. A medical malpractice action is commenced by filing a complaint with the clerk of the court. Rule 3. A complaint is one of the forms of pleadings permitted by the Oregon Rules of Civil Procedure. Rule 13(B). Pleadings are described as “the written statements by the parties of the facts constituting their respective claims and defenses.” Rule 13(A).

The complaint must contain a caption setting forth “the name of the court, the title of the action, the register number of the cause, and a designation” as a complaint. Rule 16(A). The title of the action in a complaint must include the names of all the parties. Id. The complaint must “consist of plain and concise statements in paragraphs consecutively numbered throughout the pleading … the contents of which shall be limited as far as practicable to a statement of a single set of circumstances….” Rule 16(B). Each separate claim must be separately stated, and within each claim, alternative theories of recovery must be identified as separate counts. Id. The complaint may contain inconsistent claims, and if the plaintiff “is in doubt as to which of two or more statements of fact is true,” the plaintiff “may allege them in the alternative.” Rule 16(C). The complaint may contain as many separate claims as the plaintiff has regardless of consistency. Id.

The complaint must contain (1) a plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition and (2) a demand of the relief which the plaintiff claims. Rule 18. Relief in the alternative or of several different types may be demanded. Id.

The Rules of Civil Procedure require that complaints must be “liberally construed with a view of substantial justice between the parties.” Rule 12(A). As such, technical or otherwise minor errors will not affect the validity of a complaint. Rule 12(B) states that courts “shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.”

Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

Notice pleading is the other (more common) system of pleading. For example, Ohio utilizes notice pleading. Morris Children’s Hospital Medical Center (1991), 73 Ohio App.3d 437, 443. Notice pleading serves “to simplify pleadings to a ‘short and plain statement of the claim’ and to simplify statements of the relief demanded … to the end that the adverse party will receive fair notice of the claim and an opportunity to prepare his response thereto.” Fancher v. Fancher (1982), 8 Ohio App.3d 79 (quoting Rule 8(A)). As such, a complaint “need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the nature of the action is provided.” Morris, 73 Ohio App.3d at 443 (internal citation omitted). This is in contrast to the requirements under Oregon’s fact pleading system. The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

The general rule regarding the need for expert medical witness testimony in medical malpractice cases is the law in Oregon. Getchell v. Mansfield, 489 P.2d 953, 955 (Or. 1971). The Oregon Supreme Court stated:

In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community. The conduct of the defendant professional is adjudged by this standard. Without such expert testimony a plaintiff cannot prove negligence. The reason for this rule is that what is reasonable conduct for a professional is ordinarily not within the knowledge of the usual jury. Id.

Who Qualifies as An Expert Medical Witness

The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is Rule 702 of the Oregon Evidence Code. Rule 702 states that a prospective witness may be “qualified as an expert by knowledge, skill, experience, training or education….” In addition, the Oregon Supreme Court defined the term ‘expert witness’ to mean: “a witness who is qualified, by reason of special knowledge or skill gained from experience, training, or education in a particular field, to express an opinion on a matter within that field that will be of assistance to the trier of fact in discharging the trier’s function.” Galego v. Knudson, 281 Or. 43, 47 (1978).

According to the Oregon Supreme Court, “[t]he determination of an expert’s qualifications is a preliminary question of fact for the trial judge under [OEC] 104(1).” Dyer v. R.E. Christiansen Trucking, Inc., 318 Or. 391, 398 (1994). The trial court must determine the admissibility of the expert’s opinion in part by deciding whether the qualifications of the witness have been established by a preponderance of the evidence. State v. Carlson, 311 Or. 201, 209 (1991).

In determining whether a person is qualified to provide expert medical testimony, Oregon courts focus on the substance of the prospective witness’ knowledge and experience rather than form, i.e., what degrees the person holds, professional titles, practice areas, etc. In emphasizing this point, the Oregon Supreme Court stated: “Thus, in determining the qualifications of experts in medical malpractice cases, our cases have looked to substance, rather than form, and have focused on the knowledge of the expert rather than on an expert’s particular medical degree or area of specialty.” Trees v. Ordonez, 311 P.3d 848, 855 (Or. 2013).

The Oregon Supreme Court instructed that “an expert is one who has acquired certain habits of judgment, based on experience or special observation. Because of these qualifications he is permitted to express his opinion as a witness so that the jury may have the benefit of his special ability to draw inferences from the facts in evidence.” State Highway Commission v. Arnold, 218 Or. 43, 64 (1959).

For instance, the Supreme Court held that a clinical psychologist (not medically trained) was qualified to provide expert witness testimony regarding causation with respect to the plaintiff’s mental condition. Sandow v. Weyerhaeuser Company, 449 P.2d 426, 429-430 (Or. 1969). The Court advised: “The law does not require that in order to qualify as an expert the witness be better qualified than anyone else. It only requires that he have sufficient expertise to make it probable that he will aid the jury in its search for the truth.” Id. at 430.

Similarly, the Supreme Court ruled that medical doctors were qualified to provide expert witness testimony regarding the plaintiff’s functional overlay2 even though they were not psychologists or psychiatrists. Barrett v. Coast Range Plywood, 661 P.2d 926, 931 (Or. 1983). The Court stated: “we hold that because the diagnosis of functional overlay is within the competency of medical doctors, they may express expert opinions about the disability.” Id. Further, the Court instructed: “The fact that they are not psychotherapists may go to the weight to be accorded their testimony but that fact cannot serve as the reason to disregard the testimony entirely.” Id.

Admissibility of Expert Testimony

Again, the starting point in the admissibility determination is Rule 702. It states: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness … may testify thereto in the form of an opinion or otherwise.” Accordingly, for expert medical witness testimony to be admissible, (1) the expert witness offering the testimony must be deemed qualified to do so by the trial court and (2) the offered testimony must help the trier of fact understand some evidence or fact at issue.

Once a prospective expert witness is determined to be qualified by the trial court, there is typically little disagreement regarding admissibility where the expert witness and defendant against whom the testimony is offered are members of the same healthcare profession and specialty. Where disputes generally erupt is when they are not members of the same healthcare profession and/or specialty. Under Oregon law, there is no requirement that an expert medical witness and the person against whom the testimony is offered be members of the same profession or specialty. Creasey v. Hogan, 637 P.2d 114, 116 (Or. 1981).

In Creasey, the Oregon Supreme Court held: “Where the principles, techniques, methods, practice or procedures of one branch of the healing arts concur or are generally the same as those of another branch of the healing arts, in a malpractice case against a practitioner in one branch, opinion evidence on a point concerning such matters from a practitioner in another branch is admissible.” Id. The Creasey Court ruled that an orthopedic surgeon could provide opinion testimony as an expert medical witness against the defendant podiatrist regarding the standard of care for a bunionectomy because such medical procedures are commonly performed by both professions. Id. at 117.

Recognizing that admissibility questions involving expert witnesses and defendants belonging to different professions and practice specialties will continue to arise, the Oregon Supreme Court provided the following guidance:

The party offering such evidence must show (1) that the witness possesses the necessary skill and knowledge to arrive at an intelligent conclusion touching the subject matter of the dispute and (2) that the two disciplines, in their treatment of patients under circumstances similar to those which confronted the defendant, apply methods or practices which are identical or generally similar to those followed by persons practicing the defendant’s discipline in that or a similar community. [internal citation omitted] Id. at 122.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states3follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Scientific Principles and Discoveries in Oregon

The Oregon Supreme Court adopted many of the Daubert factors for the determination of the admissibility of scientific evidence, announcing “we find the aspects of the Daubert decision … to be persuasive, and we adopt them.” State v. O’Key, 663 P.2d 663, 680 (Or. 1995). In doing so, it noted that many of those factors match the factors articulated by the Oregon Supreme Court in State v. Brown, 687 P.2d 751 (Or. 1984), which was decided about nine years before Daubert.

To be admissible, scientific evidence must satisfy the standards articulated in Brown and O’Key for the admissibility of scientific evidence under Rule 702 and Rule 401. State v. Reed, 343 P.3d 680, 682 (Or. Ct. App. 2015). The party offering the scientific evidence must demonstrate that “the proposed evidence is based on scientifically valid principles and is pertinent to the issue to which it is directed.” O’Key, 899 P.2d at 678. Thus, “[u]nder Brown and O’Key, scientific evidence is admissible if it is relevant under OEC 401, helpful to the trier of fact under OEC 702, and not subject to exclusion under OEC 403.” [footnotes omitted] State v. Perry, 347 Or. 110, 121 (2009).

The Brown and O’Key factors that trial courts must consider when determining the relevance and helpfulness of scientific evidence include:

  1. The technique’s general acceptance in the field;
  1. The expert’s qualification and stature;
  1. The use which has been made of the technique;
  1. The potential rate of error;
  1. The existence of specialized literature;
  1. The novelty of the invention; and
  1. The extent to which the technique relies on the subjective interpretation of the expert. O’Key, 899 P.2d at 676.

The seven factors are not intended to be exclusive, nor are they “intended to be taken as a mechanical checklist of foundational requirements.” Id. at 676-677. “What is important is not lockstep affirmative findings as to each factor, but analysis of each factor by the court in reaching its decision on the probative value of the” proffered scientific evidence under Rule 401 and Rule 702. Brown, 687 P.2d at 759-760.

VII. Modified Comparative Negligence with 51% Bar Rule

By statute, Oregon uses modified comparative negligence4 with a 51% bar rule. ORS §31.600. The statute provides that a plaintiff’s contributory negligence: “shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all” (1) defendants, (2) third party defendants5 liable to the claimant, and (3) any persons with whom the claimant has settled. ORS §31.600(1) and (2). The statute further provides that “any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant.” ORS §31.600(1).

Notice that the plaintiff may recover damages so long as his or her share of fault is not greater than (the 51% bar rule) all other persons listed by the statute who are determined to have contributed to the plaintiff’s injury. That is modified comparative negligence with a 51% bar rule.

Modified comparative negligence is a fault and damages allocation system. Under this system, fault is determined and apportioned among all parties (plaintiff, defendants, third-party defendants, and persons who have settled with plaintiff), and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury. As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award. If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Oregon imposes the 51% bar rule.

The statute requires the trier of fact to “compare the fault of the claimant with the fault of” all (1) defendants, (2) third party defendants liable to the claimant, and (3) any persons with whom the claimant has settled. ORS §31.600(2). The Oregon Supreme Court stated: “Generally, the apportionment of negligence is for the jury and will not be upset except where it is manifest as a matter of law that the allocation is unreasonably disproportionate.” Jordan v. Coos-Curry Electric Cooperative, Inc., 515 P.2d 913, 914 (Or. 1973) (quoting Wisconsin Supreme Court case Skybrock v. Concrete Construction Company, Inc., 167 N.W.2d 209, 214 (Wis. 1969)). The statute also allows any party to an action “to establish that the fault of a person should not be considered by the trier of fact….” ORS §31.600(4).

When deciding whether comparative negligence as a defense is available to a defendant, the focus is not on the plaintiff’s alleged “negligent conduct that leads to the need for medical treatment.” Son v. Ashland Community Healthcare Services, 244 P.3d 835, 842 (Or. 2010). That is, “conduct by a patient that created the condition that required medical care in a medical malpractice action” cannot serve as the basis for the affirmative defense of comparative negligence. Id. at 841. Rather, “the focus in a medical malpractice case is on the injury caused by the negligent treatment, not the original injury that created the need for treatment.” Id. at 843. The Son Court noted that: “A patient who negligently injures himself is nevertheless entitled to subsequent nonnegligent medical treatment, and, if it is not provided, the patient is entitled to recover damages for the consequences of that negligence.” Id.

VIII. Limitation on Damages

Noneconomic Damages

Oregon law imposes a $500,000 cap on noneconomic damages that may be recovered in a medical malpractice action. ORS §31.710(1). It states that “in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.” Id. The statute expressly states that the $500,000 cap does not apply to punitive damages. ORS §31.710(3). In addition, “[t]he jury shall not be advised of the limitation set forth in” the statute. ORS §31.710(4).

The statute defines noneconomic damages as “subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.” ORS §31.710(2)(b).

However, in 2016, the Oregon Supreme Court revisited the constitutionality of noneconomic damage caps, and in doing so, overruled some of its prior cases6, apparently resurrected some cases that had been overruled for decades, and introduced a new test for constitutional challenges to statutory caps on noneconomic damages. Horton v. Oregon Health and Science University, 376 P.3d 998 (Or. 2016)7.

Horton involved a challenge to the $3 million cap on recoverable damages contained in the Oregon Tort Claims Act, ORS §30.260 et seq. The Horton Court reversed its previous position and held that in general the Oregon legislature can impose damages caps without violating the Oregon Constitution. Id. at 1030. But the Court introduced an exception to the rule for situations where the damage cap amount is insubstantial when compared to the actual amount awarded by the jury. Id. at 1029-1030. Where the capped amount represents a “paltry fraction” of the amount awarded by the jury, the cap is unconstitutional as applied. Id. at 1030.

The Court attempted to provide some guidance on what constitutes a paltry fraction. For instance, where damages were capped at $200,000 but the total damage award was $17 million that constituted an insubstantial amount. Id. at 1027. On the other hand, the jury in Horton awarded the plaintiff over $12 million, but the award was capped at $3 million under the Oregon Tort Claims Act. The Court ruled the $3 million capped amount on a $12 million jury award was not insubstantial. Id. at 1030.

It must be noted that the Horton Court expressly stated that its decision was based in part on sovereign immunity and the Tort Claims Act. Id. The Court cautioned that “[w]e express no opinion on whether other types of damages caps, which do not implicate the state’s constitutionally recognized interest in sovereign immunity … comply with Article I, section 10 [of the Oregon Constitution]. Those cases are not before us, and we leave their resolution to the customary process of case-by-case adjudication.” Id.

In the aftermath of Horton, there are a lot of open questions and considerable uncertainty regarding damage caps. The general consensus among legal practitioners is that there will be plenty of litigation stemming from the issues touched upon in Horton for years to come.

Punitive Damages

By statute, punitive damages are unavailable in actions against most types of individual healthcare practitioners such as doctors, nurses, and dentists. ORS §31.740(1). In fact, nearly every type of individual healthcare provider against whom a medical malpractice action may be brought is shielded against liability for punitive damages awards. The statute enumerates 19 individual types of healthcare providers protected against any punitive damages awards. Id.

However, for the protection provided by the statute to apply, the healthcare practitioner must have been “engaged in conduct regulated by the license, registration or certificate issued by the appropriate governing body and was acting within the scope of practice for which the license, registration or certificate was issued and without malice.” ORS §31.740(2). The Oregon Supreme Court observed that the term ‘malice’ is well-defined under Oregon law as follows:

[i]n civil cases malice has been held to mean the intentional doing of [an] injurious act without justification or excuse. A tort committed with a bad motive or so recklessly as to be in disregard of social obligations, or an act wantonly, maliciously or wickedly done, is such a malicious act as authorizes the awarding of punitive damages. Johannesen v. Salem Hospital, 82 P.3d 139, 141-142 (Or. 2003) (quoting Linkhart v. Savely, 190 Or. 484, 505-506 (1951)).

Notably, hospitals and other healthcare facilities are not enumerated in the statute, only specific individual healthcare occupations. As such, the Oregon Supreme Court stated that hospitals and other types of healthcare employers may be held vicariously liable for punitive damages without evidence of fault on their part for the actions of their employees who may be immune from such damages themselves. Id. at 142. The rule regarding vicarious employer liability for punitive damages was articulated by the Supreme Court thusly:

[I]f the servant has committed a tort within the scope of his employment so as to render the corporation liable for compensatory damages, and if the servant’s act is such as to render him liable for punitive damages [but for the statutory protection], then the corporation is likewise liable for punitive damages. Stroud v. Denny’s Restaurant, 271 Or. 430, 435 (1975).

IX. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Oregon

Oregon law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there are a couple of limitations on fees of which plaintiffs with a medical malpractice claim should be aware.

First, there is a general limitation on attorney fees with respect to punitive damage awards. ORS §31.735(1)(a) provides that “in no event may more than 20 percent of the amount awarded as punitive damages be paid to the attorney for the prevailing party.” The statute governs the overall distribution of punitive damages among the prevailing party, the attorney for the prevailing party, and the Oregon Department of Justice. It has been amended several times since it was first enacted in 1987, but as of the date of this article, the statutory distribution of punitive damages is as follows: (1) 30% payable to the prevailing party, (2) up to 20% payable to the attorney for the prevailing party paid out of the prevailing party’s allocated share, (3) 60% payable to the Attorney General for deposit in the Criminal Injuries Compensation Account of the Department of Justice Crime Victims’ Assistance Section, and (4) 10% payable to the Attorney General for deposit in the State Court Facilities and Security Account. ORS §31.735(1).

The Oregon Supreme Court ruled that since a plaintiff has no inherent right or interest in a punitive damages award the State’s claim to a share of the award does not violate provisions of the Oregon Constitution regarding remedy for injury, trial by jury, reexamination of factual determination by jury, taking of property, or taxation. DeMendoza v. Huffman, 51 P.3d 1232, 1249 (Or. 2002). Oregon’s interest in punitive damages awards arises by operation of law in any case in which they are awarded, regardless of the nature of the underlying litigation. Williams v. RJ Reynolds Tobacco Company, 271 P.3d 103, 114 (Or. 2011).

In addition, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all attorney fee arrangements in Oregon under Rule 1.5 of the Oregon Rules of Professional Conduct. Rule 1.5 states:

  1. A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee or a clearly excessive amount for expenses.
  1. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered as guides in determining the reasonableness of a fee include the following:
  1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  1. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  1. the fee customarily charged in the locality for similar legal services;
  1. the amount involved and the results obtained;
  1. the time limitations imposed by the client or by the circumstances;
  1. the nature and length of the professional relationship with the client;
  1. the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  1. whether the fee is fixed or contingent.

The Oregon Supreme Court instructed that “the fee must not be ‘clearly excessive’ at both the time the client and the attorney enter into an agreement and at the time that the attorney charges and collects the fee.” [emphasis in original] In re Conduct of Obert, 282 P.3d 825, 834 (Or. 2012). The Court warned that “a fee could be reasonable at the time the parties enter into the agreement but ‘clearly excessive’ when the attorney collects that fee.” Id.

X. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Oregon is among the states that have enacted an “I’m Sorry” law. It is contained in ORS §677.082 and is specific to healthcare providers. The statute shields healthcare providers who communicate expressions of regret or apology by declaring that they do not constitute an admission of liability. ORS §677.082(1). The statute states:

For the purposes of any civil action against a person licensed by the Oregon Medical Board or a health care institution, health care facility or other entity that employs the person or grants the person privileges, any expression of regret or apology made by or on behalf of the person, the institution, the facility or other entity, including an expression of regret or apology that is made in writing, orally or by conduct, does not constitute an admission of liability.

A person who is licensed by the Oregon Medical Board, or any other person who makes an expression of regret or apology on behalf of a person who is licensed by the Oregon Medical Board, may not be examined by deposition or otherwise in any civil or administrative proceeding, including any arbitration or medication proceeding, with respect to an expression of regret or apology made by or on behalf of the person, including expressions of regret or apology that are made in writing, orally or by conduct.

Although expressions of regret or apology may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Oregon note that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of regret or apology may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

1 In Barke, the Court of Appeals stated: “We refer to the five-year provision in ORS 12.110(4) as a statute of ultimate repose because it places an absolute outside limit on when a medical malpractice action may be initiated, regardless of when the injury is discovered.” Barke, 31 P.3d at 1139 n.2.

2 “‘Functional overlay’ then is an aliment in addition to an already existing condition which is not caused by a structural defect. Applying these definitions to this case functional overlay may be explained as the psychological component of the injury claimant sustained to this back and it manifests itself in the pain and discomfort he continues to experience after the structural causes of his injury are no longer apparent.” Barrett, 661 P.2d at 928.

3 In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.
4 Oregon statutes use the term ‘contributory negligence’ when referring to the doctrine of comparative negligence, and the Oregon Supreme Court uses these two terms interchangeably as well. Accordingly, the terms ‘contributory negligence’ and ‘comparative negligence’ (or fault) are also used interchangeably in this article. ORS §31.600 and Lasley v. Combined Transport, Inc., 261 P.3d 1215, 1224 (Or. 2011) (“the defendant must affirmatively plead ‘comparative or contributory negligence’”).

5 A third party defendant is a party brought into a case as a defendant by the original defendant, i.e., “a person not a party to the action who is or may be liable to the third party plaintiff [original defendant] for all or part of the plaintiff’s claim against the third party plaintiff….” Rule 22(c)(1) of the Oregon Rules of Civil Procedure.

6 In 2013, the Oregon Supreme Court held that the statutory cap on noneconomic damages was unconstitutional. Klutschkowski v. PeaceHealth, 311 P.3d 461 (2013). Some practitioners appear to believe that Horton effectively overturned the reasoning underlying the decision in Klutschkowski, even though it is still technically good law.

7 The full opinion is approximately 141 pages. Its review of the history and analysis of the issues involved goes into excruciating detail and is well beyond the scope of this article. However, for anyone interested in attempting to understand the current state of the law regarding caps on non-economic damages in Oregon, reading Horton in its entirety is essential.

XI. Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

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