Oregon Medical Malpractice Laws

Before you decide to file a medical malpractice lawsuit in Oregon, be aware that these cases are notoriously complex. Medical records need to be sifted through, and expert witness testimony (for both sides) is often essential. In this article, we'll take a look at the Oregon statute of limitations for medical malpractice lawsuits, how expert witnesses are utilized, and how Oregon's damages cap can affect a medical malpractice case.

Oregon Medical Malpractice Statute of Limitations

First, as a quick refresher for those who aren't fluent in "legalese," a statute of limitations is a law that puts a firm limit on the amount of time you can let pass before going to court and filing a lawsuit over some type of injury or loss.

Like a lot of states, Oregon has a specific statute of limitations that prospective plaintiffs need to abide by if they want to file a medical malpractice lawsuit in the state's court system.

Oregon's statute of limitations for medical malpractice lawsuits can be found at Oregon Revised Statutes section 12.110, and it says: "An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."

In other words, you need to file the lawsuit within two years of the date on which you were actually harmed by—or should have known you were harmed by—the defendant's medical error.

There is also an overarching deadline in Oregon that says "every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based." So, once five years have passed your right to file a medical malpractice lawsuit is lost in Oregon, even if you couldn't have known you were harmed by malpractice during all that time.

One exception to Oregon's broad five-year deadline is situations where the defendant has used "fraud, deceit or misleading representation" to hide the malpractice. In that situation, once the fraud or deceit is discovered (along with the existence of the claim), the "clock" starts running on the standard two-year deadline.

Finally, if the injured patient is under the age of 18 or "has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know" at the time the underlying malpractice was committed, the running of the statute of limitations "clock" is paused (or "tolled") for up to five years, or for one year after the person turns 18 or the mental disability ends, whichever occurs first. These exceptions are detailed in Oregon Revised Statutes section 12.160.

What if you try to file the lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. The court will almost certainly grant the request, and that will be the end of your lawsuit. That's why it's crucial to pay attention to (and comply with) the medical malpractice statute of limitations.

Proving Medical Malpractice in Oregon

There is no Oregon statute that sets out the proof requirements in a lawsuit alleging harm resulting from medical malpractice. But typically, the plaintiff (that's the injured patient or the patient's representative) must:

• establish the existence of a provider-patient relationship
• set out the appropriate medical standard of care for the circumstances in which the patient was being treated (roughly, that means the skill and attention that a similarly-trained, local health care provider would have acted with in treating the patient)
• show exactly how the provider fell below that accepted medical standard of care in treating the patient, and
• prove a connection between the provider's medical malpractice and quantifiable harm to the patient.

The most important (and most contentious) issues in these cases typically revolve around the standard of care and how it was breached. And in Oregon (as in every state) an expert medical witness is typically required to prove these elements.

Oregon Revised Statutes section 40.410 says that when "scientific, technical, or other special knowledge" will "assist the trier of fact"—the jury in a medical malpractice lawsuit for example—a qualified expert witness may provide an opinion on legal questions like liability (the health care provider's fault) and damages (the patient's harm).

Note that expert testimony might not be necessary in an Oregon medical malpractice lawsuit that hinges on "routine" issues within the jury's common knowledge—for example, if a surgical procedure was performed on the wrong limb, or if a medical instrument was left inside the patient.

Oregon Caps Medical Malpractice Damages Only in Wrongful Death Cases

A number of states have passed laws that "cap" the amount of compensation ("damages") that a successful plaintiff can receive even after prevailing in a lawsuit against a health care provider.

Most states cap (or limit) non-economic medical malpractice damages, which includes compensation for things like pain and suffering, emotional distress, and other more subjective losses stemming from the malpractice.

Oregon is fairly unique among states in that its damage cap only applies to noneconomic damages in wrongful death cases arising from medical malpractice. That cap is set at $500,000 under Oregon law. (See Or. Rev. Stat. §§ 31.705, 31.710 for details.)

A wrongful death case is brought by the heirs or personal representatives of the deceased, and noneconomic damages are usually available to compensate both the deceased's pre-death pain and suffering, and the loss of companionship and other emotional losses suffered by the heirs or other family members bringing the wrongful death lawsuit.

Keep in mind that Oregon has no cap on economic damages in medical malpractice cases (whether they involve wrongful death or not). So, there is no limit on compensation for medical treatment (past and future), lost income, lost earning capacity, loss of financial support, and other calculable harm caused by the defendant's malpractice.

This article provides a brief summary of some of the Oregon laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Oregon medical malpractice attorney will have the answers.