Oregon Medical Malpractice Summary

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Statutes of Limitations

An action for injury caused by medical malpractice must be commenced within two years from the date the injury is discovered or in the exercise of reasonable care should have been discovered. Or. Rev. Stat. § 12.110(4) (LEXIS 2003). Except in cases of fraud or misrepresentation, an action must also be commenced within five years from the date of the treatment or omission. Id. The five-year statute of repose is constitutional. Barke v. Maeyens, 176 Or. App. 471, 31 P.3d 1133 (2001), cert. denied, 333 Or. 655, 45 P.3d 448 (2002). The statute of limitations is tolled during the time a claimant is within 18 years of age or insane. Or. Rev. Stat. § 12.160 (LEXIS 2003). However, the tolling provision cannot extend the statute for more than one year after the disability is lifted, Id., nor can it extend the five-year statute of repose found in § 12.110(4).

Oregon’s wrongful death statute of limitations applies to actions for death caused by medical malpractice. Baxter v. Zeller, 42 Or. App. 873, 601 P.2d 902, cert. denied, 288 Or. 253 (1979). This requires that an action be brought within three years after the injury causing the death is discovered (or reasonably should have been discovered) by the decedent, his representative, or a beneficiary, but in no case more than three years after the date of death or outside the five-year medical malpractice statute of repose. Or. Rev. Stat. § 30.020(1) (LEXIS 2003).

Contributory or Comparative Negligence

Oregon has adopted a form of modified comparative negligence. Under this doctrine, a claimant’s action is barred if his fault exceeds the combined fault of all defendants and persons who have settled. Otherwise, the claimant’s recovery is diminished in proportion to his percentage of fault. Or. Rev. Stat. § 18.470 (LEXIS 2003).

Joint and Several Liability

Oregon has a limited form of joint and several liability. In actions arising out of bodily injury or death, the jury apportions fault among the claimant, the defendants, and persons who have settled. Or. Rev. Stat. § 18.480 (LEXIS 2003). The liability of each defendant is several only for an amount proportionate to that defendant’s share of fault. Or. Rev. Stat. § 18.485 (LEXIS 2003). However, if within a year of judgment plaintiff brings a motion establishing that one of the defendants is uncollectible, then that defendant’s share of the judgment is reapportioned among the claimant and other defendants according to their relative fault. A defendant whose share of fault is 25 percent or less, or whose fault is less than that of the claimant, is not affected by the reallocation. Id.

Contribution

Tortfeasors who have paid more than a proportional share of the common liability, based on relative degrees of fault, have a right of contribution. Or. Rev. Stat. §§ 18.440 and 18.445 (LEXIS 2003). A settling tortfeasor is not entitled to contribution from the remaining tortfeasors whose liability was not extinguished thereby. Or. Rev. Stat. § 18.440 (LEXIS 2003).

Regardless of whether a judgment has been entered in an action against two or more tortfeasors, contribution may be enforced by a separate action. Or. Rev. Stat. § 18.450 (LEXIS 2003). Where there has been a judgment, contribution may also be enforced in that action by motion. Id. An action for contribution must be commenced within two years after final judgment or settlement. Id.

Vicarious Liability

A hospital may be vicariously liable for the negligence of a physician who is not its employee under the doctrine of apparent agency. This requires a “holding out” by the hospital of the physician as its agent and reasonable reliance by the patient, but a series of Court of Appeals decisions have made both branches of this test easy to satisfy. Jennison v. Providence St. Vincent Medical Center, 174 Or. App. 219, 25 P.3d 358 (2001); Shepard v. Sisters of Providence, 89 Ore. App. 579, 750 P.2d 500 (1988); Themins v. Emanuel Lutheran Charity Board, 54 Or. App. 901, 908, 637 P.2d 155, 159 (1981), cert. denied, 292 Or. 568, 644 P.2d 1129 (1982). In Jennison the court reviewed its prior holdings and found that the test could be satisfied for services like emergency care, pathology, anesthesiology, or radiology that are “integral to hospital operations” and that “hospitals hold themselves out to the public to provide,” 174 Or. App. at 231, 25 P.3d at 365, even where a patient was unaware of the service performed or the person providing it, so long as he had not been notified that the service would be performed by an independent contractor. Oregon has legislation protecting physicians from vicarious liability for the acts of a subordinate under certain circumstances. Or. Rev. Stat. § 677.492 (LEXIS 2003).

Expert Testimony

Expert testimony is necessary to establish the standard of care in most medical malpractice cases, but there are circumstances in which a jury is capable of deciding what is reasonable conduct without expert testimony. Getchell v. Mansfield, 260 Or. 174, 489 P.2d 953 (1971). Oregon does not have pre-litigation expert review or a requirement that medical malpractice claimants file an expert’s affidavit or statement verifying their claims. It has not adopted detailed standards that must be met to qualify as an expert in medical malpractice cases.

Damage Caps

Although the legislature has established a $500,000 cap on damages for non-economic loss in bodily injury and death cases, Or. Rev. Stat. § 18.560 (LEXIS 2003), the Oregon Supreme Court ruled it to be unconstitutional under most circumstances. It held that the damage cap violates the right to a jury trial provided by the state constitution whenever the cap is applied to a claim for which, under common law, a jury trial was customary in 1857. Lakin v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463 (1999). This did not overrule an earlier case upholding the constitutionality of the cap in wrongful death cases, since the wrongful death statute is a creation of the legislature. Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995) (also holding that a single cap limits the collective recovery of all beneficiaries).

Punitive damages cannot be awarded against individual health practitioners such as physicians and nurses, Or. Rev. Stat. § 18.550 (LEXIS 2003), but this section does not apply to hospitals. In any case where punitive damages are awarded, 60 percent must be paid to the Criminal Injuries Compensation Account and not more than half of the plaintiff’s 40 percent can go for attorneys’ fees. Or. Rev. Stat. § 18.540 (LEXIS 2003). This statute is constitutional. DeMendoza v. Huffman, 334 Or. 425, 51 P.3d 1232 (2002).

Statutory Cap on Attorneys’ Fees

There is no Oregon statute setting a limit on attorneys’ fees in medical malpractice actions, except for the 20 percent limit on an attorney’s share of a punitive damage award. Or. Rev. Stat. § 18.540 (LEXIS 2003).

Periodic Payments

Oregon does not require the periodic payment of future damages in medical malpractice cases.

Collateral Source Rule

Oregon has modified the collateral source rule. It permits the trial court to deduct from a verdict benefits received from third parties for the injury or death, but these cannot include life insurance, insurance benefits for which the claimant has paid premiums, retirement or disability benefits, or social security. Or. Rev. Stat. § 18.580 (LEXIS 2003). Affidavits concerning collateral benefits are received by the court after trial and used to modify the verdict. Id.

Pre-Judgment Interest

Pre-judgment interest is not available in tort actions when the amount of damages cannot be easily ascertained until litigation. Erickson Air-Crane Co. v. United Technologies Corp., 87 Or. App. 577, 582, 743 P.2d 747, 750, cert. denied, 304 Or. 680, 748 P.2d 142 (1987).

Patient Compensation Funds and Physician Insurance

The Oregon Professional Liability Funds Law, Or. Rev. Stat. §§ 752.005 to 752.055 (LEXIS 2003), authorizes the Director of the Department of Consumer and Business Services to establish a professional liability fund for physicians (or members of other professions), and to require that they carry limits of at least $200,000, if he makes certain findings about the unavailability of professional liability insurance. This authority has not been used.

Immunities

Oregon has waived, to a limited extent, the governmental immunity of all public bodies, including the state and its departments, agencies, cities, counties, school districts, and other political subdivisions or municipalities. Moreover, the sole remedy against government employees acting within their scope of employment is a claim against the employing public body. Or. Rev. Stat. §§ 30.260 and 30.265 (LEXIS 2003). Claims against public bodies are subject to a special, short statute of limitations: notice of claim must be given within one year of death or 180 days of injury. Or. Rev. Stat. § 30.275 (LEXIS 2003). This runs from discovery, even in wrongful death cases. Stephens v. Bohlman, 314 Or. 344, 838 P.2d 600 (1992). Public bodies and their employees are immune from liability for punitive damages. The liability of public bodies and their employees for compensatory damages is limited to $100,000 for special damages and $100,000 for general damages per claimant, and $500,000 in total per occurrence. Or. Rev. Stat. § 30.270 (LEXIS 2003).

Patient care provided at an Oregon Health and Science University campus or clinic is within the scope of state employment even if performed by a non-salaried physician for a fee. Or. Rev. Stat. § 30.267 (LEXIS 2003). Care provided elsewhere by faculty or staff is outside the scope of state employment except under limited circumstances where the university has authorized it and the university benefits financially or the care is non-fee-generating or volunteer. Or. Rev. Stat. § 30.268 (LEXIS 2003).

A governmental entity may purchase insurance, establish a self-insurance fund, or contract through the state’s Department of General Services to cover liabilities. Or. Rev. Stat. § 30.282 (LEXIS 2003). This does not create an implied waiver of governmental immunity. Espinosa v. Southern Pacific Transportation Co., 291 Or. 853, 635 P.2d 638 (1981).

Arbitration

Oregon does not require that claims of medical malpractice be heard by an arbitration panel or a medical review board prior to litigation. It has a program of compulsory, non-binding arbitration in civil cases, but only where the amount in controversy is less than $25,000 or $50,000 (depending on the circuit court the case is brought in). Or. Rev. Stat. §§ 36.400 to 36.425 (LEXIS 2003).

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Revision Date: February 6, 1998