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OHSU responds to tort claim trial jury decision

Statement from Jodi Coombs, R.N., M.B.A., Vice President for Women's and Children's Service, OHSU Doernbecher Children's Hospital:

“OHSU’s first thought is for the patient and family and our deep regret that a surgical error caused them harm. Our mission is to improve the health and well-being of individuals in Oregon and beyond. But we are human and sometimes we fall short. In this case, OHSU admitted fault and accepted responsibility for the surgical error at trial.

OHSU President Dr. Joe Robertson has asked all of us at OHSU to keep this child and family in our thoughts, and to take a moment to remind ourselves of how life-changing our work is, and how it calls us always to do better.

Despite the publicity of this trial, federal privacy laws and our obligation and desire to respect the family’s right to privacy limit what we can say. We cannot comment on the specifics of this patient’s health care at OHSU.

OHSU was limited in what it could say during the trial. We now are permitted to share publicly additional details regarding a previous payment made to the family.

OHSU fully disclosed the surgical error to the family at the time it occurred, and OHSU waived its own medical bills. In March 2011, OHSU provided the family with $3 million to cover items, including outstanding outside medical bills and anticipated expenses. This payment is the highest amount payable within the tort cap set by the 2009 Legislature. Our hope is that this helped ease the family’s burden right away, without making them wait until the end of lengthy court proceedings.

OHSU initiated the conversations that led to the payment, and it was made without the family having to waive or settle its claims against OHSU.

The $3 million tort cap statute applicable to this case is the amount set by the Legislature in 2009. The Legislature considered the cap an appropriate balance between the need for public institutions like OHSU to provide public services within the confines of limited budgets, while at the same time, ensuring that those who seek to obtain damages are treated fairly. The cap increases annually as determined by the Legislature. The cap was designed to address legal issues that the Oregon Supreme Court identified in a prior challenge to the cap. Now, post-trial motions will determine whether to apply the cap to this decision. OHSU expects that decision, however it may be decided, will be appealed. Now we will wait for the courts’ decisions.”

FAQ on tort cap case

Why is this case getting so much attention?

This case is the first one that is likely to challenge the Oregon Tort Claims Act cap that was put into place by the 2009 Legislature. The tort cap applies to OHSU and to the state, with a smaller cap that applies to smaller public entities, including fire districts, cities and counties, for example.

What is a tort cap?

A tort cap is a limitation on the amount of damages an injured party can receive from a public entity. The Legislature balances preserving the ability of public institutions to provide necessary public services against the need for those who have claims to be treated fairly.

What are the specifics of this case?

The family of a very young child sought treatment at OHSU Doernbecher Children’s Hospital in 2009. An error was made during the surgery. The family sought $32.6 million for the cost of present and future treatment and for emotional damages. The tort cap, as it applies to this case, limits those damages to $3 million.

Has OHSU admitted malpractice in this case?

This case is one of the rare circumstances in which an error was made during surgery. OHSU has admitted and regrets that error and the problems caused the child and family. Due to federal law and a desire to respect the family’s privacy, OHSU cannot discuss the details of the child’s health care.

Who decides how much the family should receive?

A Multnomah County Circuit Court jury awarded $12 million to the family. Post-trial motions will determine whether to apply the tort cap to this decision. OHSU expects that decision, however it may be decided, will be appealed to the Oregon Supreme Court.

What will the Oregon Supreme Court be looking at?

The tort cap, which increases annually as prescribed by the Legislature, was designed by lawmakers to address constitutional issues that the Oregon Supreme Court identified in a prior challenge to the cap. If this case goes to the Supreme Court, the court will determine whether the $3 million cap addressed the issues that the court previously identified as problematic

What effect does this have on OHSU health care providers and other OHSU staff?

OHSU will continue to defend and indemnify its employees against OHSU-related claims as required by law. OHSU feels that the Legislature reached a fair balance between the need for public institutions to provide services and the need to treat those who bring claims fairly.

Why does OHSU receive special tort cap protection when Legacy and Providence hospitals do not?

OHSU is not a community hospital. As a public body, OHSU’s missions are defined by state law. Those missions include health care, teaching, research and outreach. OHSU is the public academic health center and safety net hospital for the state of Oregon, caring for specialized high-risk cases that the other hospitals in Oregon cannot accept. In addition to providing health care, OHSU trains Oregon’s future health care professionals. The tort cap is a means of preserving resources at OHSU to allow for these important services to continue.

What would the financial impacts of overturning the tort cap be on OHSU?

Losing the protections afforded by the Oregon Tort Claims Act would have serious adverse financial consequences for OHSU and other public bodies covered by this cap. Prior analysis of the cost of losing the tort cap is too dated now to be useful. If the Oregon Supreme Court were to overturn the cap, the nature of the decision would inform whether or not additional analysis is necessary to determine the cost of the decision to OHSU. What is known is that employees would continue to be indemnified by OHSU against work-related claims as required by law and OHSU would work with legislators and other entities covered by the cap to enact a tort cap that answers issues raised by the court.

Is it possible that individual OHSU physicians could be financially liable in the future?

No. OHSU will continue to indemnify its physicians and employees, consistent with the requirements of the Oregon Tort Claims Act.

Are there additional cases that exceed the limits of the tort cap?

For various legal and privacy reasons, the specifics of other cases against OHSU or any other public bodies cannot be shared, but it is expected that from time to time, claimants will bring cases against public bodies alleging damages in excess of the tort cap.

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