Medical Malpractice
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July 11th, 2006

"Oregon Liability Caps Over Ruled"

The Oregon Court of Appeals ruled unanimously in favor of the family of a brain-damaged child last week, overruling a state law that limits jury awards against public agencies at $200,000.

The decision revives a lawsuit filed by the parents of Jordaan Michael Clarke, who suffered permanent brain damage while in intensive care at Oregon Health & Science University.

In 1998, a few months after his birth, Jordaan was readmitted to the hospital for surgery to repair a congenital heart defect. According to the negligence lawsuit filed by his parents, Jordaan suffered “prolonged oxygen deprivation” shortly after his surgery.

The lawsuit claimed that Jordaan was “totally and permanently disabled, essentially unaware of his surroundings, permanently unable to communicate with other persons, probably cortically blind, quadriplegic, epileptic, spastic, uneducable, and totally dependent on caregivers for all aspects of daily activities and life care.”

Jordaan''s parents sued OHSU and the negligent doctors for more than $17 million in damages to cover health care costs, lost earning capacity, and pain and suffering. However, a judge ruled that the parents could only pursue a case against the university and not individual employees.

Under Oregon state law, damage caps of $200,000 are applied to cases involving public entities, such as OHSU. When OHSU invoked this law, the case was taken up by the Court of Appeals.

The court agreed that the cap applied to public agencies, but not to negligent public employees of those agencies. And since Oregon law requires government agencies to pay awards against negligent employees, the cap protecting public agencies doesn''t apply.

To prevent the parents from seeking full damages would be unconstitutional, the court said. In its ruling, the court cited the state constitution, which requires that “every man shall have remedy by due course of the law for injury done him in his person, property, or reputation.”

“We have said from the beginning that the Oregon Constitution gives citizens a right to a remedy when they''ve been wronged. A state that immunizes its workers from lawsuits is a violation of that right. I''m not surprised that that''s what the court says, too,” said Bill Gaylord, lead attorney for the family.

If you or a loved one has suffered injury as the result of medical negligence, you may wish to seek the early advice of an experienced attorney who can help you understand your legal rights.