The Oregon Supreme Court on Thursday upheld an Oregon law setting a $3 million cap on the amount of damages that injured people can collect in lawsuits against the state or its employees.
The much-anticipated ruling won immediate plaudits from state agencies, but also a host of other publicly funded institutions and organizations -- including cities, counties, school districts, Oregon Health & Science University, the state's seven public universities and TriMet.
If the ruling had gone the other way, it would have represented the first chink in the armor of laws that limit tort claims and aim to protect public bodies and other taxpayer-supported organizations from huge payouts.
But people who have been injured because of mistakes or wrongdoing by public agencies or their workers criticized the 5-2 decision. Plaintiffs' attorneys across the state have been poring over the ruling, trying to understand its implications.
The Supreme Court indicated that it was trying to balance the needs of some -- apparently the injured people -- with the ability of public entities to provide benefits to all.
Those disappointed in the majority's opinion include Klamath Falls parents Lori Spiesschaert and Steve Horton, who brought the case at issue. The parents sued OHSU on behalf of their son, Tyson Horton, for a botched liver surgery in 2009 that nearly killed him when he was 8 months old.
Two days after the surgery, the boy was flown to Stanford University Medical Center in California for a set of life-saving surgeries, including a liver transplant. His mother donated part of her liver.
After a 2013 trial in Multnomah County Circuit Court, a jury awarded Tyson more than $12 million, finding that his past and future medical expenses amounted to more than $6 million and that he deserved another $6 million for pain and suffering.
But with the Supreme Court ruling, $3 million is all Tyson will ever receive from OHSU. OHSU already has paid that amount.
His past medical expenses for the Stanford care already have exceeded that, at $5 million, said his mother.
David K. Miller, one of the Portland attorneys for the boy, said Tyson's parents can't appeal further because the Supreme Court is the highest court in the state.
"It's very disappointing not only for the Horton family, but in my opinion, for all Oregonians," Miller said.
Spiesschaert told The Oregonian/OregonLive that she 's devastated by the ruling.
"The Oregon Supreme Court took the jury's decision and basically threw it out the window," Spiesschaert said. "It was a two-week-long trial. (The jurors) took their time and very carefully came up with their verdict."
Spiesschaert said she and Steve Horton, now divorced, might be forced into bankruptcy because they can't afford to pay Stanford the remaining millions of dollars due. She said her understanding after talking with her son's health insurance companies is that they won't pay bills stemming from medical negligence.
"The thing is, Stanford deserves to be paid," Spiesschaert said. "For three months, Tyson had one foot in the grave. They put him back together despite all odds."
Spiesschaert said she worries about the future.
"The worst part of it is not so much the bankruptcy -- we can survive that," Spiesschaert said. "The worst part is not being able to afford to care for Tyson."
The boy fought dangerous infections in the first two years after his transplant. Now 7 years old, he has a compromised immune system and can't be vaccinated against diseases such as the chicken pox, Spiesschaert said. And if he caught something like chicken pox, it would spur immediate hospitalization, she said.
Although he's healthy now, Tyson faces regular medical monitoring and the possibility that his body will one day suddenly reject his donated liver, said his mother. If that happens, he will likely die because his body can't endure another liver transplant, she said.
Spiesschaert also suffered complications from donating part of her liver. She was hospitalized for a month and still has lingering side effects.
The high court noted that it was aware that $3 million didn't cover the boy's medical expenses, but "we cannot say that the $3,000,000 tort claims limit on damages against state employees is insubstantial," wrote Justice Rives Kistler, in an 84-page majority opinion.
The state Legislature could make changes to Oregon's tort limit law that would affect future cases, but any move to do that would no doubt trigger a battle with publicly funded agencies that argue raising or abolishing the limits would come at great expense to taxpayers.
Cities, counties, school districts, TriMet and former Gov. John Kitzhaber had filed friend-of-the-court briefs urging the Supreme Court to support the tort claim limits law.
The limits used to be far lower -- $200,000 for an injured person suing OHSU -- until the Supreme Court ruled on the case of Jordaan Michael Clarke. The boy was 3 months old when he suffered profound brain damage, blindness and paralysis after being deprived of oxygen for 14 minutes while recovering from surgery at OHSU. Clarke's expenses skyrocketed into the millions.
In response, the 2009 Legislature raised tort claim limits to a maximum of $3 million for injured people. The Legislature allowed for periodic increases, and today the limit against the state or its employees stands at about $4 million.
On Thursday, OHSU pointed to that legislative action, in making the following statement:
"OHSU respects the Oregon Supreme Court's decision and appreciates the effort the Oregon Legislature made in 2009 to update the Oregon Tort Claims Act. A tort cap is critical to ensuring that public entities like OHSU, police and fire districts continue to provide the essential, advanced and high-risk services the public needs.
At OHSU, we do our collective best to heal and to advance health. We deeply regret the surgical error that occurred and what this has meant for the Horton family. OHSU fully disclosed the surgical error to the family at the time it occurred and did not charge the family for any costs, waiving all OHSU bills. OHSU also provided the family with $3 million allowable under the tort cap.
This decision recognizes that Oregon's tort cap balances the need to provide the essential, advanced and high-risk services the public needs with the need to compassionately supply reasonable financial compensation in those rare instances when someone is harmed."
The high court specifically upheld the $3 million cap for OHSU -- but also said the limit applies to an OHSU employee -- the surgeon who mistakenly snipped key blood vessels in the boy's liver.
After the 2013 trial, Multnomah County Circuit Judge Jerry Hodson ruled the $3 million limit didn't apply to the surgeon -- but the Supreme Court reversed Hodson's ruling.
Five justices supported the $3 million limit for OHSU and the surgeon: Kistler, Thomas Balmer, Jack Landau, David Brewer and senior Justice Pro Tempore Virginia Linder. Justices Martha Lee Walters and Richard Baldwin dissented.
Read the majority and dissenting opinions here.
-- Aimee Green
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