Majority overturns $12 million jury award to parents in 2009 surgery on infant son.

A divided Oregon Supreme Court upheld a $3 million limit and overturned a $12 million judgment awarded to the family of a boy whose liver operation at Oregon Health & Science University went awry in 2009.

The court on Thursday returned the case to Multnomah County, where a jury in 2013 exceeded the $3 million cap on damage awards against state agencies. OHSU became a public corporation separate from state government in 1995, but it is still covered by liability caps for public agencies.

The trial judge let the award stand, setting up the challenge.

The decision was announced 18 months after the justices heard oral arguments. The case has been closely watched not only by trial lawyers and the Oregon Medical Association, but also TriMet and associations of counties, cities, and school boards — all of whom filed arguments totaling more than 100,000 words.

Oregon, like most states, sets liability limits for local and state governments for actions taken by employees when they perform official duties.

The Legislature raised the liability limits in 2009, after the court ruled in a 2007 case — also involving OHSU — that the then-maximum of $200,000 violated the constitutional guarantee of a legal remedy for injury to person, property or reputation.

Four justices agreed, and a fifth concurred, that the new limit was consistent with the Constitution.

“We recognize that the damages available under the Tort Claims Act are not sufficient in this case to compensate plaintiff for the full extent of the injuries that her son suffered,” Justice Rives Kistler wrote for the majority in an 86-page opinion. “However, our remedy clause cases do not deny the legislature authority to adjust, within constitutional limits, the duties and remedies that one person owes another.”

Limits now are adjusted for inflation.

The case went directly to the Supreme Court, bypassing the Court of Appeals, because the 2009 legislation that raised the caps also provided for legal challenges to go to the high court.

OHSU has already paid $3 million to Lori and Steve Horton of Klamath Falls, parents of Tyson Horton, who at nine months old underwent removal of part of his liver as treatment for a cancerous tumor. The 2009 surgery resulted in extensive injuries, and its aftermath required two emergency surgeries at OHSU and an extended stay at Lucile Packard Children’s Hospital at Stanford University.

The jury awarded the Hortons $12 million — $4.1 million for past medical costs, $1.9 million for future medical needs, and $6 million for noneconomic damages, also known as pain and suffering. But under a 2009 change to the Oregon Tort Claims Act, the maximum allowed against OHSU was $3 million.

One of the legal questions was whether the cap also covered Dr. Marvin Harrison, the pediatric surgeon in the operation – and the court ruled that it did.

The court wrestled not only with the constitutional guarantee of a legal remedy for injury, but also with the constitutional right of a trial by jury to decide all legal issues. Both date back to Oregon's 1857 Constitution.

A divided court

Two justices dissented from the majority.

“Today, the majority not only deprives the Horton family of the right to the restorative remedy that the jury awarded, it also bargains away and belittles two constitutional provisions designed to guarantee justice for all,” Justice Martha Walters wrote for herself and Justice Richard Baldwin.

Kistler was joined by Chief Justice Tom Balmer, Justice David Brewer, and Senior Justice Virginia Linder, who was on the court when it heard arguments back on Nov. 6, 2014. Justice Lynn Nakamoto, who succeeded Linder on Jan. 1 of this year, did not take part.

Kistler wrote: “Our holding today is limited to the circumstances that this case presents, and it turns on the presence of the state’s constitutionally recognized interest in sovereign immunity, the quid pro quo that the Tort Claims Act provides, and the tort claims limits in this case.”

The court majority overturned parts of two other relatively recent decisions that none of the current justices participated in.

It overturned a 1999 decision that ruled unconstitutional a $500,000 cap imposed by a 1987 law on noneconomic damages.

It also partly overturned a 2001 decision allowing an exception to the state workers’ compensation system, which generally bars lawsuits for injuries in the workplace in exchange for treatment and payments to injured workers. Oregon’s no-fault system began in 1913.

Justice Jack Landau agreed with the majority to uphold the liability limit. But in a concurring opinion — usually written when a justice has a different legal basis for arriving at a decision — Landau said the majority did not go far enough when it overturned only part of its 2001 decision.

Landau wrote: “I would overrule those cases (in 1999 and 2001) and hold that the provision protects against executive and legislative interference with judicial independence and access to the courts, but does not impose a limitation on the otherwise plenary authority of the legislature to determine rights and remedies.”

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