Oregon Medical Malpractice Laws

If you are thinking of pursuing a claim of medical malpractice, it is likely that you have suffered a significant injury at the hands of your health care provider. This type of litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Oregon; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Oregon. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Oregon

In Oregon, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Oregon places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Oregon allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Oregon is one of a few states that does not place a limit on damages that may be awarded to a plaintiff in most medical malpractice cases although limitations exist in certain situations.

How long do I have to file a medical malpractice case in Oregon?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Oregon mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that Oregon law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover or should have discovered, your injury, the two-year window to file your lawsuit begins. However, you may not bring an action for medical malpractice more than five years from the time date that the alleged malpractice took place, regardless of when you actually discovered your injury.

In Oregon Medical Malpractice Cases, Who is Responsible?

In Oregon, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed healthcare provider based upon their negligence, misconduct, errors or omissions.

Those that can be held responsible due to being included in the definition of a “health care provider” include any person, corporation, facility or institution licensed by the state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a health care provider is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

What if I am partially to blame? Can I Still Recover Money for Oregon Medical Malpractice?

Oregon, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Oregon is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [2] In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Oregon decided to adopt a modified system.

Are there medical malpractice recovery caps in Oregon?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two types of damage awards you may receive in Oregon:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you. In Oregon, you must meet the burden of persuasion before a court may consider a punitive damage award. The law in Oregon requires that you prove by clear and convincing evidence that the named defendants acted with a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others. [3]

Oregon does not have a cap on the amount of economic and non-economic damages that you are able to recover during a medical malpractice case. However, if the medical malpractice case is predicated upon a wrongful death action, non-economic damages are limited to $500,000. [4] Punitive damages are not able to be levied against individual doctors or hospital staff but can be awarded against hospitals themselves.

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. While not required by Oregon law, it is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

Many states have implemented a procedure requiring you to file a document or affidavit when filing your medical malpractice lawsuit with the court. The affidavit usually states that a reasonable inquiry gave rise to a good faith belief that grounds exist for an action to be brought against all named defendants. However, to date, the law in Oregon has not required the filing of such a document.

Are some parties immune from medical negligence cases?

Many states have implemented sovereign immunity whereby the State and its municipalities may not be held liable in a tort action. However, the law in Oregon has partially waived its immunity when it comes to actions brought against its counties, cities, and local units of government. [5] If you are attempting to bring a medical malpractice lawsuit against a governmental employee who was working within the scope of their employment when your injury occurred, you will need to file the case against the governmental entity that employed the individual. If you elect to file the claim against the governmental entity, the case must be filed within 180 days of your injury occurring. [6]

Settling medical malpractice cases in Oregon

Most medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel. However, the law in Oregon does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.

If both parties are involved in a case that involves $50,000 or less and are interested in reaching a settlement in lieu of going to court, an arbitration proceeding may be sought. The arbitration is non-binding.

When compared with going to trial, arbitration can be appealing due to their low cost and expedited resolution.

Litigating medical negligence cases in Oregon

A claim for medical malpractice in Oregon is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Oregon, a civil action begins by filing a Complaint with the clerk of the court. A Complaint should include:

• The proper name of every plaintiff and of every defendant.
• A statement of facts constituting the cause of action.
• A demand for relief.

A civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit. All named defendants are then required to provide a response to the complaint in the form of an Answer within 30 days of service. [7]

Preparing for Litigation

After the Complaint, Summons and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission [8]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. You must comply with any request unless you file a written objection stating the reason or reasons for your objection.

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. The law in Oregon does not require the use of alternative dispute resolution as an attempt to create a settlement opportunity but the parties may utilize such proceedings if they wish.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Oregon: a judge or a jury. A trial jury in the circuit court is a body of 12 people. The involved parties may stipulate that a jury shall consist of any number less than 12 or that a verdict or finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. [9]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Oregon allows each side to have three peremptory challenges where jurors may be eliminated from consideration if the jury size is six or more and two peremptory challenges if the jury size is six. [10] Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Oregon, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Oregon
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. Most appeals taking place in Oregon must be filed within 30 days from notice of the judgment or decision. [11]

How to find the best Oregon Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering, and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. Therefore, it is easy to see why hiring proper legal counsel is of the utmost importance.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Some notable medical malpractice law decisions from Oregon

These cases represent awards to plaintiffs in medical malpractice cases in Oregon. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Horton v. OHSU Hospital

Lori Horton discovered a hard lump in her 6-month-old son, Tyson’s, body which turned out to be a cancerous tumor. After some initial treatment, Tyson was admitted to OHSU Hospital for surgery. However, during the operation, Dr. Marvin Harrison and his medical team sliced through vessels to the left side of the liver that should not have been cut. The cut almost killed Tyson. He went through seven surgeries to repair leaking tissues, have his spleen removed and to transplant a portion of his mother’s liver into his body.

As a result, every six weeks he has his blood is drawn to see if he is rejecting the liver transplant. He goes through specialized scans every six months to check for possible cancer-like infection.

A lawsuit was filed and the jury unanimously found that OHSU Hospital should pay $12 million in damages. The amount exceeds a cap established by the Oregon Tort Claims Act, which limits how much OHSU and other public bodies must pay for employees’ negligence causing personal injury or death. The case then made its way to the Oregon Supreme Court for what would be the first challenge to the monetary cap since lawmakers revised it in 2009.

The Supreme Court analyzed the damages cap under Oregon’s constitutional right to remedy clause and right to jury trial clause. The Supreme Court concluded that the cap did not violate the Oregon Constitution and should have been applied to reduce damages.

Lee Lyman v. PeaceHealth Sacred Heart Medical Center, Northwest Anesthesia Physicians, and Dr. Albert Cho

The plaintiff, Lee Lyman, sued PeaceHealth Sacred Heart Medical Center, Northwest Anesthesia Physicians and Dr. Albert Cho for medical negligence, claiming that he suffered brain damage as a direct result of being given 2,700 mg of amiodarone instead of the 150 mg ordered by a surgeon after he developed ventricular fibrillation during a heart-valve replacement procedure.

The lawsuit was based upon the claim that an overdose of amiodarone took place when an anesthesiologist working at PeaceHealth Sacred Heart Medical Center at RiverBend in Springfield mistakenly administered 2,700 milligrams of amiodarone — instead of the 150 milligrams ordered by a surgeon — after the plaintiff developed ventricular fibrillation while undergoing a heart-valve replacement procedure. Amiodarone is commonly used to treat heart rhythm problems.

At trial, it was indicated that the medication overdose happened after Dr. Cho misinterpreted figures on a hospital computer screen and retrieved three 900-milligram bottles of amiodarone from the hospital’s automatic dispensing machine believing that each of the bottles contained just 50 milligrams of the drug. The drug was administered and ultimately reached a toxic level in the plaintiff’s blood which caused oxygen deprivation to his brain.

The jury returned a $12.2 million judgment, finding that PeaceHealth, Northwest Anesthesia Physicians and Dr. Albert Cho were all negligent and liable for causing harm to the plaintiff.

The jury determined that PeaceHealth was 60% responsible for the harm; that Cho was 25% responsible; and that Northwest Anesthesia Physicians was 15% responsible.

Footnotes

[1] Or. Rev. Stat. § 12.110(4)

[2] Or. Rev. Stat. § 18.470

[3] Or. Rev. Stat. § 31.730

[4] Or. Rev. Stat. § 18.560

[5] Or. Rev. Stat. §§ 30.260

[6] Or. Rev. Stat. § 30.275

[7] ORCP Rule 7

[8] ORCP Rule 36

[9] ORCP Rule 56

[10] ORCP Rule 57

[11] ORCP Rule 63