Oregon wrongful death liability cap is upheld

The state Supreme Court, however, may take up the issue to settle what the appeals court called a legal "conundrum."

By Amy Lynn Sorrel — Posted May 1, 2006

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After more than a decade of survival, Oregon's cap on noneconomic damages in wrongful death cases once again may face a constitutional test.

The Court of Appeals of the State of Oregon in March upheld the $500,000 award limit in wrongful death claims. It found, as the state Supreme Court did in 1995, that the cap did not violate a plaintiff's right to a jury trial.

At the same time, however, judges noted that the limit could possibly contradict a 1999 high court ruling that wiped out caps on pain and suffering damages in personal injury cases. At issue is whether wrongful death lawsuits should be lumped in with personal injury cases, and thus lose their award ceiling.

Doctors say the question might open yet another chapter in the struggle to preserve some form of damage caps in the state.

"We oppose any attempt to remove caps on damages, and we believe the Legislature got it right when it imposed limits in wrongful death and personal injury," said Paul Frisch, general counsel to the Oregon Medical Assn.

But plaintiff's attorney Linda Eyerman argues that the 1999 Supreme Court ruling throwing out personal injury award caps disavows its 1995 decision allowing limits in wrongful death cases. She has petitioned the high court to resolve the conflict and overturn the appeals court ruling. "Our point is what is closer to an injury case than a death case?" she said.

The lawsuit prompting this debate was brought by Lori Gayle Hughes. In 2005, a Lane County jury awarded her $1 million in noneconomic damages after finding three of PeaceHealth Medical Group's doctors negligent in treating her daughter. The college freshman died of meningococcal disease. Her mother alleges that the doctors misdiagnosed the disease as mononucleosis and that the treatment delay caused her daughter's death.

PeaceHealth sought to reduce the verdict to the $500,000 cap, which the trial court ordered. The appeals court affirmed the decision.

A legal contradiction?

What the appeals court calls "an apparent conundrum" over Supreme Court precedent stems from a technicality in Oregon law, which did not recognize wrongful death actions at the time the state constitution was formed in 1857.

"A jury trial is guaranteed only in those classes of cases in which the right was customary at the time the constitution was adopted or in cases of like nature," the appeals court said, citing the Supreme Court's 1995 decision in the wrongful death case Greist v. Phillips. Therefore, the high court ruled and the appeals court agreed, no right to a jury trial existed in wrongful death cases, and Oregon's 1987 statute imposing the cap posed no violation.

Even though Eyerman argued that wrongful death was "of like nature" to personal injury, the appeals court reiterated Greist. "Oregon trial courts were empowered to exercise their discretion and set aside jury verdicts and grant new trials for excessive damages," the ruling stated.

On the other hand, plaintiffs do have the right to personal injury claims under the Oregon Constitution, which is why the high court struck down that cap in 1999 in Lakin v. Senco Products Inc., a product liability case, the appeals court wrote.

Eyerman argues that the high court corrected its earlier decision when it ruled in Lakin that the constitutional right to a jury trial "prohibits the Legislature from interfering with the full effect of a jury's assessment of noneconomic damages, at least as to civil cases in which the right to jury trial was customary in 1857, or in cases of like nature."

Reconciling the two rulings "may indeed reopen the question for the Supreme Court," appeals court Judge Maurice K. Merten wrote. "But we do not agree that it reopens it for us." In its ruling, the appeals court recognized "a fundamental difference" between Lakin and Greist in that they represented two separate types of claims, and that Lakin did not overrule the prior decision.

The OMA's Frisch said some other cases in the pipeline also could challenge the viability of noneconomic damage caps. "The current Supreme Court might like to put its foot into this considerable morass," he said.

At press time, there was no deadline for the high court to decide to hear Hughes' case, Eyerman said. A spokesman for the doctors' group said the hospital denies the allegations against its doctors. Attorneys with PeaceHealth did not return calls.

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