Oregon Remains Active In Reforming Medical Malpractice Litigation

The nationwide debate continues regarding medical malpractice laws. Oregon, a state considered to be a “late adopter” of such reforms, has been active in updating malpractice laws recently. The National Practitioner Data Bank and Diederich Healthcare generated a state-by-state summary of the frequency and costs involving matters of malpractice. Last year, Oregon ranked #13 among U.S. states with 28.6 claims per 100,000 people that paid out $42.9 million, a 5% increase over the previous year. The Governor signed a law recently introducing forms of mediation that parties in malpractice claims will use in disputing these claims prior to entering the court system. This plan is believed to be a way of limiting suits that are possibly frivolous.

The Oregon Supreme Court ruled on situations where negligent medical care leads to a denial of the potential outcome that would have resulted from treatment. This claim by Joseph Smith followed his visit to an emergency room where he exhibited signs of a stroke. Smith was discharged without having an MRI or being prescribed pharmaceutical remedies. A week later, an MRI indicated that he had a stroke and that brain damage had occurred. His claim cited the facility for negligence in failing to provide treatment that is successful in roughly 30% of these cases leading to full patient recovery. The new theory of liability relates to “a loss of chance”. Opponents of “loss of chance” claims include the Oregon Medical Association and American Medical Association, who feel these claims would negatively impact malpractice insurance costs and promote the practice of “defensive medicine” among medical practitioners. Further, the damage awards in the cases tend to be lower, thus fewer lawyers are willing to pursue them since it is more likely that they will not render compensation sufficient to truly offset the costs necessary to prove the case.

A $500,000 cap on noneconomic damages was enacted in 1987, seeking to contain large jury awards and remained until 1999. Here, the limit was deemed unconstitutional in personal injury claims, yet was retained it in matters of wrongful death. In 2016, the Supreme Court resurrected the limitation in Horton v. Health & Science University. Here, an eight-month-old underwent liver surgery that was unsuccessful and led to permanent health problems. Opponents of the cap say it does not allow for many individual circumstances involved in a case to be considered. Cases which highlight this discrepancy include:

• A recent Multnomah County case saw a $10.5 million award reduced to $3.5 million after a garbage truck accident caused plaintiff Scott Busch to lose a leg.
• Amaia Rennie, a 35-year-old, prematurely went into labor while five months pregnant. The hospital facility reportedly made errors that led her to contract a serious infection that put her in a coma and required heart surgery. Rennie ultimately lost both her legs and felt that the limitation of $500,000 in noneconomic damages was very insufficient.

A coalition has formed within the state that is putting significant pressure on political officials, partly through television campaigns, to eliminate the cap.