Oregon Legislative Panel Formed to Consider Tort Law Overhaul After Clarke v. OHSU Decision of the Oregon Supreme Court

At the end of May it was reported that the Oregon State Legislature had appointed a special bipartisan panel (consisting of 10 lawmakers and various stakeholder groups, including local governments and the Oregon Trial Lawyers Association) to examine Oregon’s tort laws and propose reforms. Among the issues the panel is expected to tackle are questions of separating medical malpractice from other claims, adjusting award caps for inflation, economic versus non-economic damages, and establishing a procedural mechanism for challenging caps.

In particular, the panel is also expected to propose a legislative response to the December 2007 decision in Clarke v. Oregon Health Sciences University, in which the Oregon Supreme Court ruled that while the defendant ("OHSU"), a major public teaching hospital in Portland, was protected by the statutory liability cap of $200,000 in medical malpractice cases, the cap did not extend to employees of the hospital. Since another state law requires public institutions to pay damages won against their employees, the decision effectively nullified the cap (in Clarke, the damages alleged exceeded $17 million).

Describing the objectives of the legislative panel in light of Clarke, State Senator Suzanne Bonamici explained: "We need to protect the rights of people who are injured, but at the same time address the concerns of the governmental entities that are not only facing economic hardship but also accustomed to having some amount of protection from the tort claim statute."