Oregon lawmaker vows to fight fellow Democrats over med-mal liability

By Chris Rizo | Jan 6, 2009

Alan Bates (D)

MEDFORD, Ore. (Legal Newsline)- One of the Oregon Legislature's leading advocates for health care reform says he will block tort overhaul legislation that does not protect all physicians in the state from potentially exorbitant malpractice payouts.

On the agenda as the Oregon Legislature reconvenes next week is a deal with trial lawyers that would provide special liability protection to state employees, including about 250 doctors at Oregon Health & Science University, state Senate Majority Whip Alan Bates told Legal Newsline.

"We're going to see a tort package come through to protect public employees and the doctors at OHSU," Bates said. "The plan as it is presently put together is not a bad plan, but it could be improved."

The Ashland Democrat and family physician said there should be caps on pain and suffering awards not just in cases involving doctors at the state's major teaching hospital in Portland, but for all physicians.

"My position is if it's good enough for the doctors at OHSU, it's good enough for every doctor in the state," Bates said. "If a plan comes through only for them, I will oppose that plan and try to line up the necessary votes to block the plan in the Senate."

Bates, architect of 2007 legislation that set the stage for major heath care overhaul in the Beaver State, said if he is forced to block the bill it could be a bitter battle because he would have to go up against many of his fellow Democrats, most of who have ties with the plaintiffs' bar.

By statute, Oregon has a tort liability cap of $200,000 in malpractice cases where the state is involved, as in state-funded hospitals like OHSU.

But that law was shaken in 2007 by the state Supreme Court, which agreed with a 2006 Oregon Court of Appeals ruling that allowed the family of a brain-damaged child to sue OHSU for more than $17 million in connection with injuries the child suffered at the hospital as a three-month-old baby.

"Basically, what is being proposed is a higher cap to really properly compensate patients, but not such a high cap that it is excessive," Bates told Legal Newsline.

The plan reached between OHSU and trial lawyers and supported by Democratic Gov. Ted Kulongoski calls for raising the current liability cap of $200,000 to $1.5 million, and eliminating the $100,000 cap on intangible harms, including extreme pain.

The new per-claim limit of $1.5 million would take effect July 1, and increase by $100,000 a year for five years to $2 million. The plan calls for a cap on incidents involving multiple claimants at $3 million and increase by $200,000 a year for five years to $4 million.

After the five-year period, the limits would increase four percent annually.

"The tort lawyers think (the plan) is good enough for doctors at OHSU, so it should be good enough for all doctors in the state," Bates said. "I cannot vote for one group of doctors getting it and one group of patients getting it and not saying it shouldn't be for everybody."

From Legal Newsline: Reach reporter Chris Rizo at chrisrizo@legalnewsline.com.

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