Oregon Injury Attorney Blog

The Oregnonian reports that the Oregon Senate approved an amendment to the Oregon Tort Claims Act which will significantly raise the damages caps for state and local government liability. This amendment is the legislature's reaction to a recent Oregon Supreme Court case that ruled the statute was constitutionally inadequate.

Without getting too technical, a "cap" is a monetary limit placed on how much money a person can recover for damages caused by another. In this case, we are dealing with the State of Oregon and its local governments. Under the current Oregon Tort Claims Act, a person who is harmed as a result of the government's negligence may make a claim for damages. However, regardless of that claimant's real damages, there are limits, or "caps" on the amount of money a person can recover. Under the current system, an injured person is limited to $100,000.00 for their economic losses, and another $100,000.00 for their "non-economic" losses.

Why the "economic" and "non-economic" distinction? "Economic" losses, in the State of Oregon, include things like medical expenses, lost wages, and other out of pocket expenses. "Non-economic" losses are described as subjective, non-monetary losses. Some people refer to this as "pain and suffering." This is one aspect of non-economic damages, but not a complete description. I remember an older lawyer once telling a client that the law gives you the right to be a whole person, but if someone takes that away from you, then you are entitled to be compensated for that loss. I tell clients that non-economic damages is compensation for the loss of their health.

The Senate addressed this issue because of a court case addressing the constitutionality of these liability caps. In 2007, the Supreme Court of Oregon decided a case called Clarke v. OHSU. In this case, Jordan Clarke's parents alleged that OHSU was negligent in treating their son, and as a result, Jordan suffered permanent and severe brain damage. The expenses for total life and health care were calculated out to $11,073,506, and the loss of Jordan's future earning capacity was figured at $1,200,000. The Clarke's also made a claim for non-economic damages $5,000,000. OHSU did something unusual, and asked for a judgment against itself, but not for these damages. Instead, OHSU, which is a part of Oregon's government, asked the trial court to apply the Oregon Tort Claim Act caps, limiting the judgment to $200,000.00. Quite a difference.

The Oregon Supreme Court found that the statute, with these limits, was unconstitutional because Oregon's Constitution guarantees a remedy to citizens harmed by another. The Clarkes were not getting a remedy with a figure representing a small fraction of their actual losses.

This new statute does a few things. First, the new limits are not separated into the "non-economic" and "economic" limits. It's just one figure. Also, the actual limit will increase each year. Then, after 15 years, the caps are indexed for inflation.

Some legislators who voted for the bill claim a need for caps on all cases, not just against the public agencies in Oregon. The usual argument is that the cost of malpractice litigation drives up health care costs. This is a matter of debate, to say the least, and so far, I have not seen any hard evidence supporting this statement. I suspect that it may be one of those arguments that, if made enough, will be accepted. There are smarter people than me who agree.

I have been watching this peanut butter mess for some time now, and have gone back and forth several times to post on the story, but it keeps morphing into something bigger. Five hundred people are sick, and eight people are dead. And these are only the reported cases that we know about.

It turns out that Peanut Corporation of America knew it was sending contaminated product to companies making cookies and other snacks, some of which went to schools. This happened at least 12 times over the past two years. With a weakened FDA unable to enforce the regulations in place, thousands upon thousands of Americans are at risk of illness from contaminated food entering the market place. Remember tainted spinach, lettuce, beef, and pet food?

Congressman John Dingall recently introduced a new statute, the Food and Drug Administration Globalization Act. This law adds regulatory teeth to the FDA's enforcement powers, giving the agency the power to better regulate the food industry. But it also allows victims of food contamination to have their day in court, making food producers accountable for the food they sell and profit from.

You hear a lot about too many lawsuits, but sometimes I wonder if there are not enough. Obviously, the only thing some of these companies understand is the bottom line, and knowing that they can be taken to task will go a long way toward dissuading a company from sending tainted food to school children.

Other Helpful Links:

Consumer Union Statement Supporting FDA Globalization Act

American Association for Justice Press Release

The Washington State Bar Association (WSBA) issued a press release in an effort to reach out to Washington residents affected by December's storms. Fifteen Washington Counties were declared federal disaster areas because of this winter's storms. The WSBA has activated a hotline for low-income residents needing legal help to recover from the disaster. This program is established in accordance with the Disaster Legal Services Program established by FEMA and the ABA Young Lawyers Division.

Storm victims who need help but who cannot afford an attorney can call the hotline at 866-519-7099 and leave a message.

Other Helpful Links:

Washington State Insurance Commissioner web page "Information for Winter Storm Victims"

Red Cross Winter Storm Tips

The Oregonian reported this afternoon that police in Oregon, Washington, and British Columbia will be ramping up patrols to enforce seat belt and child passenger restraint laws.

Police will conduct a traffic-safety enforcement blitz through Feb. 22, focusing on the use of seat belts and child passenger restraints. The article points out that seat belt use has doubled since Oregon required motorists to use the belts back in 1990. In that same time, Oregon motor vehicle fatality and injury rates have dropped.

I have handled many injury claims throughout the years, and although I am sure it has happened, I cannot recall a client telling me that they were not wearing a seat belt. I do, however, recall at least one case where I represented a person's estate because the driver was thrown from their car and killed at the accident scene.

Other Helpful Links:

Seat Belt Safety Facts

Child Seat Guide for 2009

National Safety Council Safety Campaign for Seat Belts and Air Bags

I recently read an article in a professional journal reporting on a data base service that provides information about auto defects. Data bases have become a big part of the every day life of lawyers. Of course, this service costs some money, and it is geared toward lawyers and engineers investigating safety problems in various cars and trucks.

There is an option for car owners and consumers. The National Highway Traffic Safety Agency (NHTSA) maintains a similar site, called Safecar.gov, offering a searchable data base, and best of all, it's free. You can search for recalls, investigations, or even check out complaints made about any model of car.

The introductory page also lays out some sobering facts:

42,000 people die in traffic accidents each year.

Traffic crashes are the primary cause of debilitating injuries in the United States.

Traffic crashes are the number one killer of Americans under the age of 34.

Here are some other helpful links:

Crash Survivors Network offers safety crash ratings for cars.

MSN offers a similar data base to check out your car's safety rating.

About.com includes a question and answer page about child car seats.