Catastrophically injured Oregonians ask for right to sue for more than $500,000 for suffering

UPDATE Monday, April 24 at noon: The Senate did not vote Monday morning on Senate Bill 737. A new date for a vote hasn't been set yet.

Amaia Rennie told a state senator that she was 35 years old, healthy and less than five months into her pregnancy when her water broke and she headed to the hospital.

But things went from bad to worse when medical staff made a series of errors, she said.

She ended up with a life-threatening infection that put her in a coma and sent her into surgery to repair her heart, she said. She lost both of her legs below the knee and nine fingertips. She could no longer have children, she said.

Rennie won a confidential settlement three years ago that allowed her to cover the $120,000 cost of a surrogate birth so she could become a parent and pay for the state-of-the-art prosthetic legs that help her keep up with her now 3-year-old.

The Portland-area woman spoke at the town hall meeting to let Sen. Laurie Monnes Anderson know that she supports a bill that would lift the state's $500,000 cap for pain and suffering damages awarded by juries in personal injury cases. If the cap had applied to her, Rennie said her prospects would have been even more grim.

“Without those funds, I couldn’t make my life as whole as it could be for me,” she told Monnes Anderson.

The bill is expected to go up for a vote on the Senate floor Monday. But it's unclear if it will pass -- it appears to be in a near deadlock, within one or two votes of passage.

A coalition of more than two dozen victim rights and other groups called Restore Justice for Survivors has identified Monnes Anderson, D-Gresham, and another senator, Elizabeth Steiner Hayward, D-Northwest Portland/Beaverton, as holdouts. Monnes Anderson is a retired nurse, and Steiner Hayward is a doctor.

The coalition has launched TV ads urging the two senators to support Senate Bill 737. Neither Monnes Anderson or Steiner Hayward returned calls from The Oregonian/OregonLive seeking comment.

Opponents of the bill include insurance companies and doctors who say allowing enormous payouts for non-economic damages leads to out-of-control insurance costs and higher rates for everyone.

At the April 15 town hall with Monnes Anderson, Rennie said no amount of money can undo catastrophic injuries like hers, but the money can help people move on with life.

“I think I would be in a totally different predicament if there was a cap,” Rennie said. “I would be very angry. I’ve forgiven those people. They are people. They made a mistake. But they owned it. They said, ‘We screwed up and she needs to live a normal life. And here, we’re going to help you.’ And I feel like they did that. I feel at peace with that.”

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Back-and-forth history

In 1987, the Oregon Legislature created a ceiling of $500,000 for noneconomic damages in an effort to limit mammoth jury verdicts.

Proponents pointed out that it never capped the amount that injury victims could seek for their economic damages -- hard costs such as medical bills, lost earning capacity and psychological counseling. Critics of the cap say it is sometimes difficult to predict all economic costs that will pop up latter in life.

The cap stood until 1999, when the Oregon Supreme Court deemed it unconstitutional in personal injury cases, but left it in place in wrongful death cases. Oregon voters twice shot down attempts to reinstate some form of the cap for injured people in 2000 and 2004.

But in May 2016, the state Supreme Court effectively reinstated the cap in the case of Tyson Horton vs. Oregon Health & Science University. Horton was eight months old when doctors botched a liver surgery, nearly killing him and causing lingering lifelong health problems.

The high-court ruling means that today, with an exception for plaintiffs who sue governmental agencies, injured people in Oregon can't collect more than $500,000 in noneconomic damages. Critics of the cap say a “one sized fits all” approach doesn’t take into account the circumstances of an individual case or allow jurors to decide what's fair compensation.

“It’s an incredible insult to jurors, who spend days or weeks listening to testimony, only to be told that the verdict they arrived at has been overturned because one or two members of the Legislature has claimed the right to have the last word,” said Portland attorney Greg Kafoury.

Examples of drastically reduced jury verdicts have already arisen in the year since the state Supreme Court reinstated the cap.

In January, Multnomah County Circuit Judge Michael Greenlick slashed a jury's noneconomic damages award from $10.5 million down to $500,000 for Scott Busch, but left intact Busch's $3 million economic damages award – leaving him with a total award of about $3.5 million. Busch's leg was severed after a garbage truck made an illegal turn into him, as he legally walked across a downtown Portland crosswalk on his way to work.

Plaintiffs attorneys say juries typically go above $500,000 in noneconomic damages in a very small number of cases, when people have suffered horrific pscyhological trauma or physical injuries such as extensive brain damage, disfigurement or paralysis.

The Supreme Court ruling has left in limbo some people who won big verdicts around the same time it ruled, or whose cases are now on appeal.

Among those who could see their verdicts drastically reduced is Zeferino Vasquez, who was 21 when he was crushed by a hay-baling machine and his midsection was squeezed into a 1 ½ inch-wide space, his lawyers say. That left him paralyzed from the waist down.

A jury awarded him what amounted to $1.3 million for his medical expenses and other tangible costs, and $4.9 million in noneconomic damages for the decades left in his life that he will spend in a wheelchair.

In similar circumstances is a woman in her 80s who was raped in her hospital room at Providence St. Vincent Medical Center by nursing assistant Adeladilew Mekonen. He was convicted earlier this year of the crime. The woman has filed suit, seeking $2 million in noneconomic damages from Providence under the claim that the hospital allowed Mekonen to keep working even though the hospital allegedly had information that he'd preyed on other patients before her.

Those who argue against a cap say women and sexual-assault victims are often hurt the most by it. That’s because sexual-assault victims often have relatively small claims of economic damages, but much larger claims for noneconomic damages because the psychological trauma can haunt them for a lifetime.

Backing Senate Bill 737 as part of the coalition is the the ACLU of Oregon, Crime Victims United, Survivors Network of Those Abused by Priests, the Brain Injury Alliance of Oregon, Disability Rights Oregon and the plaintiff’s attorneys group known as the Oregon Trial Lawyers Association.

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Strong opposition

Although the bill is being lobbied for -- hard -- by the coalition, it also has met powerful opposition from the organizations that often end up as defendants in lawsuits: hospitals, insurance companies and businesses both large and small.

Opponents of the bill say doing away with the cap means insurance companies will have to pay out more to injured people, and that only jacks up the costs of insurance premiums and out-of-pocket medical care for everyone.

They also point to some states in the West that cap noneconomic damages awards at $250,000 to $500,000, they say. That has helped curb steep increases in liability insurance rates for doctors, they say.

James Dorigan -- a senior vice president at The Doctors Group, which insures more than 2,600 healthcare providers in Oregon -- points to a 2016 survey by the Medical Liability Monitor. It found general surgeons in San Francisco paid about $20,000 in liability insurance for the year in a state with a $250,000 cap. That compared to $60,000 for their counterparts in Seattle, which has no limit. Portland fell somewhere in between, at $35,000.

Backers of Senate Bill 737 question the conclusions made from that data -- saying the best way to reduce liability rates is to reduce medical mistakes.

Dorigan hopes that if the cap stays intact in Oregon, liability rates will hold steady or even fall.

When doctors’ liability rates soar, doctors are more likely to leave the state or abandon specialties including obstetrics and pediatric brain surgery, according to cap advocates.

In lobbying lawmakers to vote against the bill, the Oregon Chapter of the American College of Emergency Physicians has told senators that expensive lawsuits only drive up the costs of emergency-room visit for patients. According to one national study, 53 percent of ER doctors said they order the number of tests that they do out fear of getting sued.

-- Aimee Green

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