Statutes of Limitations

Oregon applies a two-year statute of limitations to medical malpractice actions. Or. Rev. Stat. § 12.110(4) (1988). Under the statute, an action does not accrue until the date the injury is first discovered or in the exercise of reasonable care should have been discovered; however, no action may be brought more than five years from the date of treatment. Id. That statute of repose and others like it have been upheld as constitutional by the intermediate appellate courts. Jones v. Salem Hospital, 93 Or. App. 252, 762 P.2d 303 (1988), cert. denied, 307 Or. 514, 770 P.2d 595 (1989).

The statute of limitations is tolled during the time a claimant is within 18 years of age or insane. Or. Rev. Stat. § 12.160 (Supp. 1998). However, this provision cannot extend the statute for more than one year after the disability has been lifted, Id., nor can it extend the five-year statute of repose. Or. Rev. Stat. § 12.110(4) (1988).

Oregon's wrongful death statute, which is applicable to medical malpractice actions involving death, requires that an action be brought within three years after the injury causing the death is discovered (or reasonably should have been discovered) by the decedent, but in no case more than three years after the date of death or outside the five-year medical malpractice statute of repose. Or. Rev. Stat. § 30.020(1) (Supp. 1998).

Contributory or Comparative Negligence

Oregon has adopted a form of modified comparative negligence. Under this doctrine, a claimant's action is barred if his fault exceeds the combined fault of all defendants and persons who have settled. Otherwise, the claimant's recovery is diminished in proportion to his percentage of fault. Or. Rev. Stat. § 18.470 (Supp. 1998).

Joint and Several Liability

Oregon has a limited form of joint and several liability. In actions arising out of bodily injury and death, the jury apportions fault among the claimant and the defendants, and the liability of each defendant is several only for his proportionate share. Or. Rev. Stat. §§ 18.480 and 18.485 (Supp. 1998). However, if within a year of judgment plaintiff brings a motion establishing that one of the defendants is uncollectible, then that defendant's share of is reapportioned among the claimant and other defendants according to their relative fault. A defendant whose share of fault is 25 percent or less, or whose fault is less than that of the claimant, is not affected by the reallocation. Or. Rev. Stat. § 18.485 (Supp. 1998).

Contribution

Tortfeasors who have paid more than a proportional share of the common liability, based on relative degrees of fault, have a right of contribution. Or. Rev. Stat. §§ 18.440 and 18.445 (1988). A settling tortfeasor is not entitled to contribution from the remaining tortfeasors whose liability was not extinguished thereby. Or. Rev. Stat. § 18.440 (1988).

Regardless of whether a judgment has been entered in an action against two or more tortfeasors, contribution may be enforced by a separate action. Or. Rev. Stat. § 18.450 (Supp. 1998). However, where there has been a judgment, contribution may be enforced in that action by motion. Id. An action for contribution must be commenced within two years after final judgment or settlement. Id.

Vicarious Liability

Oregon courts will allow the trier of fact to hold a hospital vicariously liable for the negligence of a physician who is not its employee, if the physician is performing "an inherent function of the hospital," or if the hospital has created ostensible agency by representing (even implicitly) that the physician is its agent. Themins v. Emanuel Lutheran Charity Board, 54 Or. App. 901, 908, 637 P.2d 155, 159 (1981), cert. denied, 292 Or. 568, 644 P.2d 1129 (1982).

Expert Testimony

Oregon does not require medical malpractice claimants to file an expert's statement verifying the claims of negligence with the complaint. However, expert testimony is required to establish a prima facie case of medical malpractice, unless the negligence is obvious to a layman. Getchell v. Mansfield, 260 Or. 174, 489 P.2d 953 (1971).

Damage Caps

Although the legislature has established a $500,000 cap on damages for non-economic loss in bodily injury and death cases, Or. Rev. Stat. § 18.560 (Supp. 1998), the Oregon Supreme Court recently ruled it to be unconstitutional under most circumstances. It held that the damage cap violates the right to a jury trial provided by the state constitution whenever the cap is applied to a claim for which, under common law, a jury trial was customary in 1857. Lakin v. Senco Products, Inc., 329 Or. 62, ___ P.2 ___, 1999 WL 498088 (July 15, 1999). This did not overrule an earlier case upholding the constitutionality of the cap in wrongful death cases, since the wrongful death statute is a creation of the legislature. Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995) (also holding that a single cap limits the collective recovery of all beneficiaries).

Oregon limits punitive damages in medical malpractice cases. Or. Rev. Stat. § 18.550 (Supp. 1998). Punitive damages cannot be awarded against health care practitioners such as physicians and nurses, but they may be awarded against hospitals. Id. If punitive damages are awarded, 60 percent must be paid to the Criminal Injuries Compensation Account. Not more than half of the plaintiff's 40 percent can go for attorneys' fees. Or. Rev. Stat. § 18.540 (Supp. 1998).

Statutory Cap on Attorneys' Fees

Oregon does not place a cap on the amount attorneys can charge a client, nor does it require that contingent fee arrangements be reviewed by the court.

Periodic Payments

Oregon does not require the periodic payment of medical malpractice damages.

Collateral Source Rule

Oregon permits the trial court to deduct from a verdict certain benefits received by the claimant in connection with the injury. Or. Rev. Stat. § 18.580 (Supp. 1998). The court cannot deduct life insurance, insurance benefits for which the claimant has paid premiums, retirement or disability benefits, or social security. Id. Evidence concerning collateral benefits is received by the court after the verdict and used to modify the final judgment. Id.

Pre-Judgment Interest

Pre-judgment interest is not available in tort actions when the amount of damages cannot be easily ascertained until litigation. Erickson Air-Crane Co. v. United Technologies Corp., 87 Or. App. 577, 582, 743 P.2d 747, 750, cert. denied, 304 Or. 680,748 P.2d 142 (1987).

Patient Compensation Funds and Physician Insurance

Oregon does not have a patient compensation fund, nor does it have a statutory requirement for physicians and health care providers to obtain liability insurance.

Immunities

Oregon has waived, to a limited extent, the governmental immunity of all public bodies, including the state and its departments, agencies, cities, counties, school districts, and other political subdivisions or municipalities. Moreover, the sole remedy against government employees acting within their scope of employment is a claim against the employing public body. Or. Rev. Stat. §§ 30.260 and 30.265 (Supp. 1998). Claims against public bodies are subject to a special, short statute of limitations: one year for death and 180 days for injury. Or. Rev. Stat. § 30.275 (Supp. 1998). This runs from discovery and the five-year malpractice statute of repose does not apply. O'Brien v. Oregon, 104 Or. App. 1, 799 P.2d 171 (1990). Public bodies and their employees are immune from liability for punitive damages. The liability of public bodies and their employees for compensatory damages is limited to $100,000 for special damages and $100,000 for general damages per claimant, and $500,000 in total per occurrence. Or. Rev. Stat. § 30.270 (1988).

Patient care provided at an Oregon Health Sciences University campus or clinic is within the scope of state employment even if performed by a non-salaried or courtesy physician for a fee. Or. Rev. Stat. § 30.267 (1988). Care provided elsewhere is within the scope of state employment only if performed by faculty, staff, or students acting under prior, express, written authority. Or. Rev. Stat. § 30.268 (Supp. 1998). An employee of the University is not considered to be acting within the scope of state employment when the services constitute an exclusively private relationship between the patient and the physician. Id.

A governmental entity may purchase insurance, establish a self-insurance fund, or contract through the state's Department of General Services to cover liabilities. Or. Rev. Stat. § 30.282 (1988). This does not create an implied waiver of governmental immunity. Espinosa v. Southern Pacific Transportation Co., 291 Or. 853, 635 P.2d 638 (1981).

Arbitration

Oregon does not require that claims of medical malpractice be heard by an arbitration panel or a medical review board prior to litigation.