Oregon Supreme Court refuses to apply Damages Cap in Birth Injury Case
Posted on October 7, 2013
Klutschkowski v. PeaceHealth, et al., S059869 (Or SC, September 26, 2013).
Recently reversing the Oregon Court of Appeals, the Oregon Supreme Court held that the cap on non-economic damages violated the Article I, section 10 of the Oregon Constitution (the Remedies clause) in a birth injury case. A jury in Lane County awarded the plaintiff parents $557,881.11 in economic damages and $1,375,000 in noneconomic damages. After the jury’s verdict, defendant moved to apply the $500,000 cap on noneconomic damages. Agreeing with plaintiff parents that the cap would violated Article I, sections 10 and 17 of the Oregon Constitution, the trial court declined to apply the cap.
The Court of Appeals reversed the trial court, holding the statutory $500,000 cap on non-economic damages applied in a personal injury case brought for injuries a child sustained during birth. It explained that because the common law did not recognize a cause of action in 1857 for birth injuries, neither the Remedies clause nor the right to a jury trial in the Oregon Constitution limited the legislature’s authority to cap the damages resulting from birth injuries. The Court of Appeals relied on two cases from the 1800’s which hold that an infant has no right to recover for injuries suffered in utero (prenatal injuries) because the fetus is at that time a part of the mother. On that basis, the Court of Appeals interpreted “prenatal” injuries to include those injuries that occur during birth and therefore the $500,000 cap on noneconomic damages did not deprive the plaintiff of a remedy.
The Oregon Supreme Court reversed. The court distinguished the 1800’s in-utero cases on the facts. Because the infant plaintiff’s head had been delivered at the time of the birth injury, it was difficult to say that he was “part of his mother” at the time of his injury. As the court explained: the decisions relied upon by the Court of Appeals “do not stand for the proposition that a defendant’s negligence that directly causes a physical injury only or primarily to the child during delivery was not actionable at common law.” In 1857, therefore, plaintiff would have had a right of action in his own right, separate from any injury done to his mother, for injuries he sustained during his birth. The trial court acted appropriately in declining to apply the $500,000 cap to plaintiff’s noneconomic damages award.
Justice Landau wrote a concurrence which, while not carrying the weight of law, may indicate the tide is turning on the current analysis applied in cases deciding the constitutional validity of the damages cap. The concurrence challenges the precedents which require the courts to undertake an “imaginative reconstruction of nineteenth-century case law.” After challenging historical precedent and identifying the ridiculousness associated with this type of judicial reconstruction, Justice Landau puts forth his opinion that the framers of the Oregon Constitution did not intend the remedy clause to serve as a limitation on legislative authority, “certainly not one that essentially freezes the guarantee to preserve mid-nineteenth-century tort law.” Instead, Justice Landau believes the remedies clause is about accessibility of the courts, and not about limiting the abilities of the legislature. The concurrence invites an appeal to put the issue under proper argument and reexamination.
Katie M. Eichner
Lindsay Hart, LLP