TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, December 28, 2007

Oregon's Tort Claims Act Ruled Unconstitutional As Applied

The Oregon Supreme Court ruled today that its tort claims act's elimination of a cause of action against public employees, coupled with a cap on damages payable by the state amounting to a tiny fraction of plaintiff's economic losses, is unconstitutional.  Like many states and the federal government, Oregon replaced complete sovereign immunity with a tort claims act.  Oregon's version made the state itself the exclusive defendant for claims involving public employees.  Furthermore, plaintiffs are severely limited in their ability to recover from the state. 

In Oregon those limits are:

"(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.

"(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.

"(c) $500,000 for any number of claims arising out of a single accident or occurrence."

In other words, if employees of a public hospital commit malpractice on a plaintiff, only the state may be sued.  The individual physicians, nurses, etc. may not.  Additionally, the state has to pay only a relatively small amount to a successful plaintiff.

In a case involving medical malpractice in which the plaintiff's economic damages exceeded $12 million, the court declared the limits in violation of the Oregon Constitution.  Under the tort claims act, the plaintiff was entitled to no more than $200,000.  The court held the tort claim limits left the plaintiff with no adequate remedy at law, contrary to Article I, section 10 of the Oregon Constitution.  The opinion is here.


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