The Oregon Court of Appeals issued an opinion holding that the pain and suffering damage cap (noneconomic damage cap) violated the Oregon Constitution. In the opinion Vasquez v. Double Press Mfg., issued May 4, 2016, the court of appeals held that ORS 31.710 (1), which places a cap of $500,000.00 on most non-economic damages in cases involving bodily injury violated the Oregon Constitution because such damages are a question of fact and the right to a jury trial on questions of fact is guaranteed for cases “of a like nature” to those for which the common law provided a right to jury trial when the Oregon Constitution was adopted in 1857.
The Vasquez case did not involve any sovereign immunity issue – against public bodies in Oregon the cap still has application. But in cases not involving public bodies, the non-economic damage cap should not apply.
And where did it come from in the first place? The caps have been propounded by insurance and big business lobbies. There are several problems with the caps. They discourage lawyers from taking medical malpractice cases – and such cases are important in order to raise consciousness on the issue of avoiding medical mistakes. While $500,000 seems like a lot of money, it becomes less significant in large cases that involve large amounts of costs for expert witnesses for example, costs that normally are not recovered for the other party. Also, in cases of devastating injury, whatever is leftover for the plaintiff after all the costs and fees are paid is not sufficient for lifetime support. While I do not usually practice in the area of medical malpractice myself, such litigation does serve an important public purpose.
The text of ORS 31.710(1) states: “Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.” In cases not confronted with a sovereign immunity issue (the State of Oregon, OHSU, etc.), the Vasquez opinion clarifies that the cap should not apply.