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Oregonian Report Based on Poor Understanding of Supreme Court Ruling

Saturday, December 29th, 2007

My goodness, to read the coverage in today’s Oregonian, one would think that the towns, cities and universities in the state face near-certain bankruptcy because of yesterday’s Oregon Supreme Court opinion. (See yesterday’s entry for summary and citation on Clarke v. OHSU.)

In today’s Oregonian, Ashbel Green relates that the sky is falling. Here is the link:  www.oregonlive.com/news/oregonian/index.ssf?/base/news/1198900517209320.xml&coll=7

The problem with the report is that it misses a key legal concept. The Court ruled that the cap was unconstitutional as applied to Jordaan Clarke’s case. That “as applied” detail is very important. The cap remains the law, except in very rare cases, like Jordaan Clarke’s, when the harms and losses caused by profound injuries dwarf the maximum amount recoverable.

Jordaan Clarke suffered profound brain damage caused by the negligence of OHSU medical providers. The profound injuries confined him to a wheel chair, left him in need of round-the-clock care, and triggered future medical expenses in excess of $11 million. These facts are admitted by everyone.

In the case decided by the Supreme Court, Jordaan Clarke could recover no more than $200,000, even though his harms and losses exceeded $10 million. Jordaan’s case is exceptional by any measure.

The problem with the cap is that it applies one size-fits-all justice to all cases. In the case of Jordaan Clarke, the limits were so severe that they violated the Oregon constitution’s guarantee on the right to a remedy. If the Court had gone the other way, it would have said to OHSU, “Don’t worry; no need to be careful. We won’t hold you for whatever harms and losses you cause to your patients.” Anyone who has ever raised a child knows that this is a horrible message to send. Fortunately, the Oregon Supreme Court got it right.

This isn’t the stuff of falling skies, and the Oregonian is doing a disservice to all by the alarmist report.

David F. Sugerman