In a 2009 malpractice claim, Oregon Health & Science University (OHSU) Hospital admitted to doctor negligence. However, OHSUHospital may not have to pay out the full award.
The case began when the child’s mother discovered a hard lump on her infant son’s body. The lump turned out to be a cancerous tumor. During surgery in 2009, the medical team sliced through vessels to the left side of the liver that should not have been cut. The “catastrophic” mistake nearly killed the infant. The boy went through seven surgeries in less than three weeks as doctors repaired leaking tissues, removed his spleen, and transplanted a portion of his mother’s liver into his body. Every six weeks his blood is drawn to see if he is rejecting the liver transplant. Every six months he is checked for any possible cancer-like infection. The child faces a lifetime of monitoring, medication and the possibility of needing another liver transplant in the future.
A jury unanimously found OHSU responsible for the botched liver operation, and awarded the family $12 million. The decision exceeds the $3 million cap established by the Oregon Tort Claims Act, which limits how much OHSU and other public entities must pay for employees’ negligence causing personal injury or death. Sadly, the cap doesn’t even cover the cost of the liver transplant. Even though OHSU has voluntarily paid the family the $3 million (much of which went to Stanford University Medical Center) under the Tort Claims Act, the plaintiff’s attorney said OHSU is hiding behind that cap instead of taking responsibility. The family still owes about $2.5 million to Stanford.
The right to trial by a jury is the most fundamental of our constitutional rights. Capping damages is a direct attack on those rights. Jurors, after thoughtful consideration of the evidence presented to them, should have the freedom to award damages based upon actual physical and emotional harm suffered by the victim. The medical profession wants immunity from being responsible for negligence. Taking away the rights of patients injured by negligent doctors and hospitals will do nothing to improve health care; study after study has shown that tort reform does not lower a doctor’s insurance costs. Tort reform only provides inadequate compensation to victims. If wrongdoers are not accountable for their actions, then society – read “taxpayers” – will pay for the wrongdoer’s transgressions and be forced to provide care for the victims. Why should the burden be born by the victim or the taxpayer instead of the doctor and his insurance company (those who profit from treating the patient)? Our court system is about justice; it is about fairness; it is about your rights. The best solution to medical malpractice is to reduce instances of it; this will reduce medical costs and improve the quality of patient care. Hands off our American justice system.
If this case makes its way to the Oregon Supreme Court it will be the first legal challenge to the monetary cap since its revision in 2009. We will be watching.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.