On December 28, 2007, the Oregon Supreme Court held that the damage cap in the Oregon Tort Claims Act (OTCA) violates the Remedy Clause in Article 1 Section 10 of the Oregon Constitution when it was applied to claims against employees of public bodies. In Clarke v. OHSU the plaintiff claimed over $15,000,000 in damages as a result of the negligence of OHSU and certain of its staff members. The OTCA limited the available damages to $200,000.
The Remedy Clause states that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” In order to establish that the legislature has violated the Remedy Clause by abolishing a cause of action, a plaintiff must first show that the common law of Oregon recognized a cause of action for the alleged injury in 1857, when the drafters wrote the Oregon Constitution. Once this is established a plaintiff must then show that the legislature has not provided an adequate substitute remedy for the common law cause of action it abolished.
The opinion, written by Chief Justice Paul J. De Muniz, held that the damage limitations in the OTCA were constitutional as applied to the claims against OHSU, because OHSU was an instrumentality of the state and therefore would have been protected from lawsuits in 1857 under the doctrine of sovereign immunity. The court also held, however, that the OTCA requirement that OHSU be substituted as defendant in the place of its staff members—which resulted in the cap on damages being applied to the claims against the staff members—violated the Remedy Clause. Employees of public bodies were liable for negligence in 1857. By subjecting claims against such employees to the damage cap, the legislature violated the Remedy Clause because the substituted remedy was inadequate: “an emasculated version of the remedy that was available at common law.”
Justice Thomas A. Balmer, joined by Justice Rives Kistler, concurred, noting that the remedy for medical malpractice claims against OHSU “should have been increased long ago by the legislature.” The concurrence also emphasized that while the OTCA provisions were unconstitutional because they did not provide a substantial remedy to medical malpractice claims as a class, there are situations in which statutory limits on damages are constitutional even though the statutes might “limit the damages that can be recovered by a particular plaintiff for a particular claim.”
The Ohio Supreme Court also issued an opinion dealing with damage caps last week. It upheld as constitutional caps on noneconomic and punitive damages included in recent tort reform legislation.