SOURCE: The Oregonian
It took nearly six years for Zeferino Vasquez to find out if he would get to keep the $6.2 million that a jury awarded him after he was paralyzed when an agricultural machine he was fixing suddenly flipped on and nearly squeezed the 21-year-old to death.
Vasquez’s legal limbo ended last month when the Oregon Supreme Court ruled that a state cap on noneconomic damages didn’t apply in his case. He was due the full amount, the court ruled.
His case had been tied up in the vast debate over an Oregon law that limits payouts to no more than $500,000 for pain and suffering, also known as noneconomic damages.
The Legislature enacted the law 32 years ago, but it has a tortured history. The state Supreme Court has gone back and forth on whether the cap abides by the Oregon Constitution. A landmark 2016 ruling, Horton v. OHSU, appeared to reinstate the cap. But exceptions have been carved into case law and today uncertainty hangs over when the cap applies.
State lawmakers are again considering whether it’s time to settle this long-standing issue by explicitly writing the cap out of existence. They tried two years ago but failed.
House Bill 2014’s chief sponsor, Rep. Carla Piluso, D-Gresham, says the cap mandates a “one size fits all” form of civil justice and overrides the wisdom of jurors who have carefully pondered the details of each plaintiff’s individual case.
“They deserve to have a jury of their peers decide the justice they are due,” Piluso told senators who this week passed the bill out of the Senate Judiciary Committee. The bill passed the House in March and now heads to the Senate for a possible floor vote.
The cap has effectively kept most plaintiffs from collecting more than $500,000 in noneconomic damages from the private businesses and individuals they’ve sued.
To be clear, no law limits the amount Oregon juries can award for economic damages, which include medical bills, lost wages and damaged property.
Defense lawyers and the companies and people they represent say the system equitably allows injured people to recover their actual losses — plus a little extra for their pain and suffering. The cap also keeps insurance rates down, they say.
Injured people and their lawyers say the noneconomic damages cap doesn’t offer fair compensation for the true misery they suffer.
Among those affected are sex abuse victims, crash survivors, maimed workers and patients whose lives are forever changed because of medical mistakes.
“The great evil of the cap is it punishes the people who are the most severely damaged,” said Portland attorney Greg Kafoury. “Abuse victims, paraplegics, people with terrible burns, amputees, people who are blinded. … The Legislature has a moral obligation to do the right thing. There’s no ethical or moral justification for this cap. The motivation is saving money for insurance companies.”
Kafoury represented Vasquez, who lost the use of the lower half of his body after his waist was squeezed into a 1 ½ inch space when he climbed inside a hay-bale machine to unjam it.
After a nine-day trial, jurors decided he should get $1.33 million in economic damages for past and future medical care. They also decided the machine’s manufacturer should pay him another $4.86 million in noneconomic damages for all he has endured and will endure for the rest of his life.
That started an all-out appeals fight over whether he was legally entitled to all the money. The Supreme Court found he was because of an exception related to his worker’s compensation.
Bryan Boehringer, executive vice president of the Oregon Medical Association, says his organization’s 8,000 doctors, physician assistants and other members have seen firsthand the suffering of injured patients and aren’t insensitive to their pain.
“I think we can agree that none of these things should ever happen to anyone,” Boehringer said.
But Boehringer and other opponents of HB 2014 say it will drive up medical malpractice rates for doctors and that consumers ultimately will pay the passed-along costs.
Opponents also argue that if liability rates soar in Oregon, future doctors are more likely to steer clear of the state and high-risk specialties such as obstetrics, pediatrics and neurology.
That’s particularly true of doctors in rural Oregon, which already struggles to attract and retain these professionals, Boehringer told members of the Senate Judiciary Committee at a hearing earlier this month.
Sen. Shemia Fagan, D-Portland, countered the claims about skyrocketing insurance costs, saying a consultant who analyzed medical malpractice insurance rates for opponents of the bill couldn’t show that Oregon’s rates have risen or fallen based on the existence or absence of a cap over the past 20 years.
Dr. Carrie Miles, an obstetrician and gynecologist in Northwest Portland, told Fagan and other committee members that she considered moving to another a state with more favorable laws or leaving medicine altogether after she was sued in 2015 for $12.5 million in noneconomic damages and $34 million in economic damages.
The case involved a baby born with serious health problems seven weeks after Miles saw the pregnant mother once for a 20-minute visit.
Miles believes Oregon law encouraged the plaintiff and her attorneys because, at least at the time the suit was filed in 2015, Oregon courts weren’t enforcing the $500,000 noneconomic damages cap.
Miles ultimately prevailed in the lawsuit, but the experience was all-consuming, she told committee members.
“This was four years preparing for court, three weeks out of my practice being in court and considerable stress for myself, my partners, my patients,” Miles said. “From a personal standpoint, I can tell you that as a physician, the idea of lifting the cap on noneconomic damages is terrifying.”
On the other side, injured people say the cap has destroyed them financially and emotionally. It has discouraged them from suing for much more than $500,000 and prevented them from feeling a sense of justice.
Birdie Creecy of Coos Bay and her husband sued an Oregon coast doctor in 2016 for $3.3 million in noneconomic damages, plus $250,000 in economic damages, over what she says was a botched back surgery that left her once-active husband incontinent and depressed.
“Lowell was reluctant to go anywhere except for his doctor’s appointments because he was always wet or soiled and deeply ashamed,” Creecy said. “He hated that I had to help clean him up. It was just so embarrassing for him. I told him it was a labor of love.”
Creecy says her husband ultimately became confined to their home and missed his grandchildren’s weddings and meeting three of his great-grandchildren.
They settled the suit before her husband died several years after the surgery. Their attorney, David K. Miller of Portland, says a confidentiality clause prevents him from revealing the settlement amount but that “the threat of the cap definitely affected the negotiations of the final amount.”
The cap often encourages plaintiffs – who’ve suffered extreme pain and suffering — to settle for less than $500,000 if their economic damages are relatively low, plaintiffs’ attorneys say. That’s because there’s no point in spending maybe $100,000 bringing a case to trial when, despite what a jury decides a plaintiff is due, those noneconomic damages later will be reduced by a judge to $500,000 anyway.
“How can you ever put a price on a life?” she asks.
Two years ago, a similar bill followed a similar path as this year’s HB 2014. That bill passed the House and passed out of Senate committee, but the bill was never brought to a full Senate vote.
It’s unclear if HB 2014 has the votes to pass this time around. Backers say it could come up late next week.
Oregon’s Tort Caps: In a Nutshell
House Bill 2014 would eliminate a $500,000 noneconomic damages cap on payouts to injured people from private companies or individual defendants.
The bill would leave in place a portion of the law that caps noneconomic damage payouts at $500,000 in wrongful death lawsuits. These suits typically are filed by surviving relatives for damages such as loss of companionship.
There is no cap on economic damages in lawsuits filed against the private sector.
The bill wouldn’t affect a set of other caps in place on state and local governments. Those caps are adjusted each year for inflation and apply to both noneconomic and economic damages in most lawsuits. For example, the most a state governmental agency such as the Oregon Department of Human Services or OHSU currently would have to pay to one claimant is $2.1 million. A local governmental entity such as the city of Portland or TriMet is capped at $727,200 for a single claimant.
But courts can make exceptions on a case-by-case basis.