Retired Jackson County circuit judge Loren Sawyer’s editorial published today in the Mail Tribune makes several excellent points relevant to the latest push for “tort reform.” The judge notes that Oregon law contains built-in safeguards against so-called frivolous lawsuits that check abuses without denying Oregonians suffering from personal injury or wrongful death access to justice.
First, under Oregon Rule of Civil Procedure 21 A (8), a defendant may move to dismiss a complaint that fails to state ultimate facts constituting a legal claim. A “frivolous” suit is unlikely to survive the challenge, which can be made even before the defendant answers the complaint. If by chance a claim without merit slips through, ORS 20.105 provides that attorney fees can be awarded against the party who has brought it. That’s a strong deterrent to bringing claims without a solid basis in law and fact to back them up.
Second, Oregon prohibits claiming punitive damages until the court has had an opportunity to examine the claim and rule that it has some merit. The victim of personal injury caused by negligence, medical malpractice, or a dangerous product will not be entitled to punitive damages unless he or she shows by clear and convincing evidence that the defendant acted “with malice or . . . a reckless and outrageous indifference to a highly unreasonable risk of harm and . . . a conscious indifference to the health, safety and welfare of others” (ORS 31.730). The “clear and convincing” standard means that the plaintiff must show more than the preponderance of the evidence required to prevail on injury claims.
Judge Sawyer notes that the court may reduce a jury’s award of punitive damages if it finds them by excessive, further protecting defendants—and exposing as false claims that rampant lawsuit abuse requires restricting injured people’s rights further. Data from the Government Accountability Office (GAO) and Congressional Budget Office (CBO) back up the judge’s position. They show that medical malpractice accounts for less than one and a half percent of overall health care spending, and that restricting patients’ legal rights would have little to no effect on health insurance premiums or health care costs.
Finally, even if an Oregon jury renders a verdict for punitive damages and the judge lets them stand, only 40 percent of the amount goes to the plaintiff. The majority goes to the Oregon Criminal Injuries Compensation Account.
What does this mean if you or a loved one are among those harmed by negligence or wrongful conduct? It most likely means that if an Oregon personal injury lawyer files a claim on your behalf, that there is a sound legal basis for recovering compensation. Insurance companies and defendants will still resist mightily. But they have more than enough procedural and statutory tools to do so already. As Judge Sawyer wrote, “Ask the person who is confined to a long life in a wheelchair and requires constant care whether we need caps on tort recoveries and general tort reform.”
Portland personal injury lawyer Dane Johnson offers a no-cost, no obligation case consultation to discuss your injuries and legal rights in all accident, medical malpractice, and dangerous product injury claims. Contact the Law Office of Dane E. Johnson online or call us at (503) 975-8298.
Related Web Resources
Loren Sawyer, Editorial, Personal Injury Lawsuits are Not Abused in Oregon, Mail Tribune (Nov. 29, 2009).
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