Posts Tagged ‘OTCA’

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

Oregon Supreme Court Finds Tort Claim Act Unconstitutional

Friday, December 28th, 2007

In a remarkable decision today, the Oregon Supreme Court concluded that the Oregon Tort Claims Act is unconstitutional, as applied in a case involving profound injury. The case, Clarke v. Oregon Health Sciences Univ., involved a profoundly injured child who suffered brain damage as a result of negligent care at Oregon Health Sciences.

Despite the fact that the baby’s lifetime medical needs would cost over $11 million, the Oregon Tort Claims Act limited the baby’s recovery to $200,000. The Oregon Supreme Court concluded that the limits deprived the child of a remedy guaranteed by the Oregon constitution.

Here is the link to today’s opinion: www.publications.ojd.state.or.us/S053868.htm
It’s an interesting decision. The Oregon Supreme Court strives to decide cases unanimously. And while all of the participating justices agreed to the outcome, two joined in a concurring opinion that carefully suggested how the legislature might consider fixing the constitutional problems.

The case will likely mean different things to different interests. For severely injured consumers, it means that injuries caused by the government are not artificially capped by limits that are low and outdated.

But the opinion also leaves open many questions. For example, all the justices agreed that the $200,000 maximum was constitutionally inadequate in Jordaan Clarke’s case. But what happens when the injuries are profound but don’t total $11 million in economic damages? For the present, it looks like the Court will be addressing that question on a case-by-case basis. I suppose this isn’t the end of the world, as legal systems, lawyers and judges exist specifically to frame and decide these evolving questions.

To be sure, both opinions reveal keen wisdom about the role of the judiciary as a co-equal branch of our system. The court narrowly decided the case and invited the legislature to fix the problem with specific observations that provide legislators with some guidance on how to go forward. I don’t particularly agree with how the court got there or a number of the specifics in both the majority and concurring opinions. Even so, I have to say that the court handled a tough case with grace.

Where we go from here should prove interesting for those of us who represent consumers.

David F. Sugerman