OR Case Update: The Return of the Tort Cap! Oregon’s Supreme Court Reverses Two Prior Decisions in New Landmark Case

From the desk of Jeff Eberhard: Back in 1987, the Oregon legislature enacted a limit on noneconomic damages of $500,000 in personal injury cases, but soon after that the Oregon Supreme Court held in two cases that those limits were unconstitutional under the Oregon Constitution.   In the following case, the Court revisits those prior decisions, ultimately determining they were decided wrongly.  See the discussion below regarding how this applies to the $500,000 non-economic damages cap.

Claims Pointer: This case involves the Oregon tort cap for public bodies.  However, the net effect is that Oregon’s $500,000 limit on noneconomic damages in personal injury cases is enforceable. This is a significant change that will benefit insurers and self-insured entities, among many others. The Horton case involved a medical malpractice claim following a botched surgery on a six-month-old boy.  The Oregon Supreme Court held that the cap on damages of Oregon Tort Claims Act was constitutional, despite years of cases going the other way.  The Court re-examined the Oregon Constitution and its own prior decisions, ultimately determining that, among other things, the right to a jury trial under Article I, section 17, of the Oregon Constitution is “procedural” rather than “substantive,” meaning that the legislature could define the elements of a claim or the extent of damages available for a claim.  In short, the Court determined the legislature’s limit to claims for person injury was constitutional under Article I, section 17.

NOTE: Our next update on this case will address the Court’s analysis under the Remedy Clause of the Oregon Constitution as to when the tort cap is enforceable.

Horton v. OHSU, 359 Or 168 (2016).

In this medical malpractice case, a six-month-old boy developed a cancerous mass on his liver.  Two doctors from Oregon Health & Science University (“OHSU”) participated in an operation to remove the mass but inadvertently transected blood...

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