Here is how the court explains it:

In sum, we hold that (1) OHSU would have been entitled to sovereign immunity at common law and, therefore, plaintiff would have had no common-law claim against OHSU that is entitled to protection under Article I, section 10; (2) because OHSU is entitled to sovereign immunity, the legislature can limit damages recoverable against OHSU to any amount it chooses, unfettered by Article I, section 10's Remedy Clause; however, (3) the elimination of a cause of action against public employees or agents in ORS 30.265(1), as applied to plaintiff's claim against the individual defendants, violates the Remedy Clause of Article I, section 10, because the substituted remedy against the public body, as specified in ORS 30.270(1), is an emasculated version of the remedy that was available at common law. [footnote omitted]

From: http://www.publications.ojd.state.or.us/S053868.htm

Here is how the court explains it:

In sum, we hold that (1) OHSU would have been entitled to sovereign immunity at common law and, therefore, plaintiff would have had no common-law claim against OHSU that is entitled to protection under Article I, section 10; (2) because OHSU is entitled to sovereign immunity, the legislature can limit damages recoverable against OHSU to any amount it chooses, unfettered by Article I, section 10's Remedy Clause; however, (3) the elimination of a cause of action against public employees or agents in ORS 30.265(1), as applied to plaintiff's claim against the individual defendants, violates the Remedy Clause of Article I, section 10, because the substituted remedy against the public body, as specified in ORS 30.270(1), is an emasculated version of the remedy that was available at common law. [footnote omitted]

From: http://www.publications.ojd.state.or.us/S053868.htm

http://www.publications.ojd.state.or.us/S053868.htm

" As we have explained, the legislature is authorized under Article I, section 10, to vary or modify the nature, the form, or the amount of recovery for a common-law remedy. However, that authority is not unlimited. To be clear, we respect the legislature's goal in amending the OTCA in 1991 -- the legislature was entitled to conclude that the goal of encouraging public employment of qualified health care professionals by protecting them from the demands of litigation and the threat of personal liability is an important one. (18) However, there is simply nothing that we can discern from our state's history, or from the nature, the form, or the amount of recovery available for the preexisting common-law claim, that would permit this court to conclude that the limited remedy for permanent and severe injury caused by medical negligence that is now available under the OTCA meets the Article I, section 10, remedy requirement."

Basically, the Court is saying that the Leg can't completely take away ("emasculate" in the Court's language) a plaintiff's right to recover for injuries.

It's a step in the right direction, in a way. However, it probably would behoove the State to adopt a comprehensive reform of medical malpractice/medical injury claims to make it mirror the worker's comp system. The truth is that only 1 in 16 people injured by medical error actually recover anything, but the effect of even these rare cases has a deleterious effect on the reasoned practice of medicine. A more enlightened system would simply compensate people reasonably, but not exorbitantly, for unexpectedly poor outcomes from medical procedures, whether or not they were caused by medical error. Docs should make medical decisions based on the best science available, not their fear of being sued.

The flip side is that the Medical Board would actually have to take a more active role in policing incompetence in the medical profession. It is currently a remarkably ineffective regulator of physician competence. Indeed, it appears to do little to limit the practice of medicine by incompetent physicians, preferring instead to focus on the low hanging fruit - docs addicted to narcotics, docs who have committed crimes, etc.

If this ruling is validated upon appeal, then we are going to see the courts flooded with lawsuits from individuals appealing caps placed on prior judgments against state agencies.

Marty writes:

"A more enlightened system would simply compensate people reasonably, but not exorbitantly, for unexpectedly poor outcomes from medical procedures, whether or not they were caused by medical error"

So what you're saying is that if a person signs an informed consent that enumerates the possible bad outcomes of the particular procedure, that this informed consent should become worthless in a system where "unexpectedly poor outcomes" occur all the time?

I think we need to be very careful with this ruling. We need to differentiate between "bad outcomes", and medical malpractice. I have no problem with medical malpractice, but when people sue over outcomes that are listed explicitly on an informed consent document, I get more than a bit pissed off. The whole purpose of an informed consent is to spell out what could happen as a result of procedure X. But, that seems to be irrelevant to people. One of the reasons there are so few OB-GYN's in residencies these days, and why so many are giving up their OB practices, is the potential for litigation over things not in an OB's control. Why should an OB be liable for a genetic defect for which there is no prenatal test? Why should an OB be responsible for a diagnosed defect that turns out to be worse than can be seen on ultrasound? Why should a brain surgeon be liable if a patient who has a brain tumor ends up paralyzed following a very complex brain surgery, especially when this is a known complication.

If I read what you're writing above, we should simply compensate these patients for these bad outcomes no matter what.

How will that make medicine more affordable, more widely available?

Disclaimer: my wife is a radiologist.

Chuck P writes:

"If this ruling is validated upon appeal,"

There isn't any appeal left. That was the Supreme Court's ruling. Their rulings are not appealable. The only thing that can happen is that the parties go back to Judge Kantor and work things out in a way more fair to the boy and his family. Hopefully, the Legislature will deal with the whole issue of liability caps for public agencies and quasi-public agencies when it meets in February.

If the plaintiffs are smart in this case -- and I know the lawyer involved and so I think smart would be an understatement -- they will be back in Multnomah County working out a deal before the Legislature meets. If the legislature sets a reasonable cap before the parties come to an agreement, the Legislature may moot any efforts to go beyond.

I think mrfearless47 missed the earlier point about compensation for "bad outcomes". If the funds that go into malpractice were pooled and legal expenses reduced, all people that have a bad outcome could be compensated at a reasonable level. The Medical Board needs to do a better job of licensing but not penalize MDs that take risky patients. Malpractice insurance rates have been tied to the insurance company expected rate of return causing them to raise rates when their investments tank. What will they do with the current stock market? The original workers comp program was to remove the workers right to sue their employer. I have heard that being able to sue for malpractice is considered like winning the lottery in Florida.

Jim writes:

"I think mrfearless47 missed the earlier point about compensation for "bad outcomes". If the funds that go into malpractice were pooled and legal expenses reduced, all people that have a bad outcome could be compensated at a reasonable level."

This is just preposterous. Why should there be any compensation for a bad outcome. You're essentially arguing that society should be responsible for the effects of natural selection. Sorry but I don't buy that at all.

I guess if we're being so forthcoming, I should mention that my wife is a pediatrician.

Regardless of how we choose to compensate, there has to be some mechanism. We could just as easily have a more robust disability compensation system instead of one for poor outcomes, I suppose. I simply believe that tying it to medical error does not end up helping the injured party or the medical profession. Anesthesiologists have substantially reduced deaths from general anesthesia by adopting a no-fault "safety" culture that focuses on prevention rather than accountability. Surgeons have resisted, and consequently have not experienced a similar improvement in outcomes. Their fear of change ends up continuing a largely dysfunctional system.

Besides, on the issue of informed consent, how does a baby give informed consent to be born? How does a heart attack patient give informed consent? Your point is well taken for optional procedures - I doubt any of us want poor outcomes on plastic surgery cases or gastric bypasses compensated.

I should note in the discussion above, that someone said that there was no possibility of appeal. That's not true, strictly speaking. Appeals from the State Supreme Court can be taken up to the US Supreme Court. However, since the Oregon Supreme Court decided the issue on the State Constitution, rather than on any issue of federal law, the US Supreme Court will not intervene.

Kari:

I agree with what you wrote. The post was about a particular legal outcome and its effect on public agencies. And I agree that OHSU got hoist on its own petard, and I'm glad. They've been playing both sides of the street for too long, and they handled this case badly from the outset. The outcome could have been so much different (and without the Supreme Court's heavy-handed intervention) if OHSU had used some common sense instead of playing the victim here. They deserve what they got.

For Marty Wilde:

Whether deaths from anesthesiology have declined or not, anesthesiologists malpractice insurance rates have not declined substantially. A surgical malpractice or bad outcome litigation virtually always names the anesthesiologist and anyone else in the OR at the time. Consequently, the anesthesiologist rates are tied to surgical rates, both of which are quite high.

As for the baby who didn't sign the informed consent, there is now a considerable literature in "wrongful birth" lawsuits filed against the parents of children born with certain defects. And, I didn't mention heart attack victims at all in my list of examples. I think there seems to be better education among families of heart attack victims and the overall decrease in litigation in that area is one of the few bright spots in the malpractice arena. At least that's what the medico-legal department in my wife's practice reports. I can't post a link here because it is a private document available only to partners on a private intranet.

Your call for a more robust disability system would not, in my opinion, solve the problem. In most medical tort claims, the lion's share of the demand for money is in the area of non-economic damages, which wouldn't be covered by a more robust disability system. In the case referenced above, the liability cap was used to deny the claimant even the most basic economic damages. It is exceptional in that regard. But a robust disability system wouldn't cover "pain and suffering", "loss of consortium", and other things that clutter up our courts today. There would still be tort litigation to recover those losses. Rather than put the burden on society to cover those bad outcomes, I'd just as soon have some sort of binding arbitration run by a group of knowledgeable people, who could decide whether any compensation was due, and, if so, how much. I'd like to see the whole system of torts reformed to take trial lawyers and juries out of the system. I just don't agree that every bad outcome deserves compensation of some sort.

This decision is not just about the state hospital or medical cases. It makes Oregon's state employees responsible for their actions after far too many years of having virtual immunity from having damages awarded against them no matter what kinds of neglect or worse those state employees subjected Oregonians to in the scope of their work.

This is a great decision and the medical suits that seemingly everyone is worried about will not be the big suits that seemed to be feared.

Watch for spate of lawsuits against Oregon Department of Human Service, whose employees have act without regard to basic civil rights and worse, for far, far too long.

The information coming forth in the press accounts you will be seeing, as a result of those cases, will be shocking and extremely costly to the state of Oregon. The solution is apparent. The entire broken and abusive DHS system needs to finally have some accountability and should be completely made over and totaly dismantled and set up with civilian oversight on everything DHS does. Right now, the department investigates itself.

I believe attorneys who are familiar with the frustration suffered by so many in Oregon are smiling over this New Year's vacation and getting ready for the spate of phone calls they are going to be receiving on cases they can finally earn some real money on. This is long overdue.