*1 581 affirmed;judgment Appeals January decision of Court Argued and submitted proceedings for further remanded to circuit court reversed and case of circuit court 28, 2007 December CLARKE, Michael Jordaan minor, litem, ad guardian his Clarke, Sari Review, on Respondent v. UNIVERSITY, HEALTH SCIENCES
OREGON corporation; M.D.; Adnan Cobanoglu, Mustafa Sharma, M.D.; Blizzard, M.D.; K. Sanjeev John David M.D.; Soifer, M.D.; E. Betsy A. Fiamengo, Steven Wilson, R.N., Stewart, R.R.T.; and Ana Jennifer Review, Petitioners on REDDY, M.D., k. M. Veerappa Defendant, OREGON, STATE OF Intervenor on Review. S53868)
(CC 05116; A124560; CA SC P3d 418 *3 Gary PC, William F. Rudnick Gary, Harrang Long argued him the cause for on review. With on briefs petitioners Rudnick, Lidz, were Sharon A. Jerome and Susan D. Marmaduke, Portland. on Clarke, respondent H. the cause for
Kathryn argued her A. Gaylord, review. With on the briefs were William and Eyerman, Bradley, Gaylord Eyerman Linda K. Todd A. Bradley, P.C., Portland. General, filed a Metcalf, Attorney
Janet A. Assistant brief her Oregon. on behalf of intervenor on review State of With Hardy Myers, Attorney Mary on the brief were General, and Williams, H. General, Solicitor Salem.
Roy Lindsay, Weigler, Pulvers, Hart, Neil & LLP, Portland, filed briefs on behalf of amicus curiae Port of Portland. Attorney
Janet A. Metcalf, General, Assistant filed a brief support petition for review on behalf of amicus curiae Oregon. State of Cooney, Cooney,
Thomas E. Paul A. and David J. Madigan, support petition filed a brief for review on Oregon behalf of amicus curiae Medical Association. Landis, David C. Portland, filed a brief on behalf of Oregon amicus curiae Medical Association. Meng, Harry Agnes Auerbach, Snider,
Linda Paul Sowle, Brattain, Dori M. Mark B. Comstock, Brown, James M. Downs, Ronald W. filed briefs on behalf of amici curiae League Oregon Oregon Cities, Counties, Association of County, Oregon Multnomah Association, School Boards Oregon Oregon Association, Small Schools Association of Oregon Officials, Inc., School Business Confederation of Special School Administrators, and Districts Association of Oregon.
Mark Rauch, Salem, S. filed a brief on behalf amicus City County curiae Insurance Services.
Robyn Lyon, Torp Ridler, E. LLP, Barbee B. Tonkon Oregon Portland, filed a on brief behalf of amicus curiae Business Association. Leonard, Portland,
Maureen filed a brief on behalf of Lawyers amicus curiae Trial Association. Jeffrey Wobbrock, Portland, White,
Lawrence R. Washington D.C., filed a on brief behalf of amicus curiae American Association for Justice. *4 Muniz, Justice, Gillette, Durham,
Before De Chief Balmer, Walters, Kistler and Justices.**
** Linder, J., participate did not in the consideration or decision of this case.
584-a MUNIZ, DE C. J. opinion
Balmer, J., concurred and filed an in which joined. Kistler, J.,
584-b MUNIZ, C. J.
DE Tort case, Oregon In this we address whether 30.265(1) and ORS (OTCA), Act ORS specifically Claims Clause 30.270(1), case, to this violates the applied 10, of the Constitution. of Article 30.265(1) provides, part: officers, employ-
“The sole cause of action for tort of body acting scope within the agents public ees or eligible representation or duties and employment their or 30.287 shall be and indemnification under ORS 30.285 body only. remedy pro- an action vided *6 any ORS 30.260 to 30.300 is exclusive of other any officer, employee agent or against whose act or omission action or suit a officer’s, such body within public scope gives
employee’s agent’s employment or or duties or suit. other form of civil action or suit rise to the action No shall an action suit is an permitted. be or If agent filed officer, employee public body, appropriate or on body only motion the shall be substituted as the defendant.” 30.265(1) added). 30.270(1), turn,
ORS ORS in (emphases limits the to: against any public body recoverable
“(a) $50,000 any any for claimant number of claims damage property, including to or destruction of conse- quential damages, arising single out of a accident or occurrence.
“(b) $100,000 any general special claimant as and damages or occurrence arising single for all other claims out of a accident $100,000,
unless those exceed may special special which case the claimant recover additional damages, but in no event shall the total award of $100,000. damages exceed
“(c) $500,000 arising of claims out of a number single accident or occurrence.” 30.270(1) added). I, 10, section
ORS (emphasis Constitution states: Oregon secret, justice but shall be adminis-
“No court shall be and with- tered, purchase, completely and without openly every remedy by man have due course delay, out and shall 586 person, property, done him in his of law for
reputation.”
Whitlow,
In the recent case of Jensen v.
334 Or
(2002),
rejected
challenge
court
a facial
I. BACKGROUND pleadings. following We take the facts from granted judgment pleadings the trial court on the Because pursuant in the B,1 to ORCP 21 this court assumes facts pleadings Sager McClendon, 33, 35, to be true. v. (1983). P2d 697 February
Plaintiff Jordaan Clarke was born (OHSU) University and Science with con- Health May genital heart defect. He was admitted to OHSU surgery, surgical Following repair that condition. for the plaintiff placed surgical care unit. While in was in a intensive oxygen deprivation prolonged unit, suffered damage. causing permanent him brain damage a direct result of the Plaintiffs brain was agents. employees negligence and certain of its of OHSU expenses totally permanently His Plaintiff is disabled. *7 $11,073,506, health care will amount to for total life and earning capacity and his $1,200,000, is loss of his future $5,000,000. are noneconomic brought against plaintiff this action OHSU 2001, against him.2 Pursuant and the individuals who treated 30.265(1), substitute OHSU as the ORS defendants moved to granted trial court defendant in the action. The sole 1 closed, pleadings but within such time as ORCP 21 B states: “After the are trial, may judgment pleadings.” delay any party move for on the not to 2 Blizzard, MD; Cobanoglu, John are Mustafa The “individual defendants” MD; Soifer, MD; MD; Sharma, MD; Fiamengo, Betsy Sanjeev Jennifer Steven “Defendants,” Wilson, opinion, Stewart, RRT; includes the RN. in this and Ana only Oregon Health and Science defendants. “OHSU” refers individual University. plaintiff complaint nam- filed a second amended motion, ing only answer, In its OHSU admitted OHSU as defendant. ways alleged negligent it in one or more of the that was plaintiff negligence permanent and that its resulted “plaintiff plaintiff. sustained OHSU also admitted damages in excess of the mone- economic and noneconomic tary Oregon Claims Act as a result of limitations of Tort injuries negligence caused of OHSU.” judgment pleadings pursu-
OHSU moved for on the contending B, ant to that the trial court should ORCP judgment against enter in favor OHSU in the liability maximum under ORS $200,000, amount of 30.270(1). OHSU’s granted The trial court OHSU’s motion and judgment against entered in the amount $200,000. OHSU appealed, challenging
Plaintiff
the substitution of
arguing
OHSU for the individual defendants and
that the
entry
judgment
$200,000
trial court’s
in the amount of
right
I,
denied him the
to a
in violation ofArticle
sec-
Oregon
right
10,
tion
Constitution,
of the
as well as the
to a
jury
Appeals
trial under Article
The
I, section 17.3
Court of
rejected plaintiffs
argument
I,
10,
Article
section
as to his
because,
concluded,
claim
OHSU
it
OHSU would
liability
have been immune from
at common law. Clarke v.
(2006).
App
OHSU,
610, 615-22,
Article section with to the substitu 30.265(1). tion of OHSU as the sole defendant under ORS Id. argued that, because, at 623-34. Plaintiff at common law in 1857, he would have had a cause of action employees permits legis OHSU, I, Article section remedy only provides adequate lature to abolish that if it remedy. argued Plaintiff further substitute Id. at 623-24. recovery against limited that, OHSU was not an because 30.265(1) adequate case, substitute in this vio agreed lated Article section 10. Id. at 624. The court Constitution, cases, provides: “In all civil by Jury right of Trial shall remain inviolate.” *8 588 constitutionally provide adequate
the
did
rem
OTCA not
“recovery
edy
explaining that
of less than two
case,
in this
given
percent
damages particularly
the
of one’s economic
—
injuries alleged
remedy ‘incapable
nature
the
of
—is
”
injured.’
(quot
restoring
right
Id. at 626
the
that has been
ing
Inc.,
83, 119-20,
332 Or
Transfer,
Smothers v. Gresham
(2001)).
applied
that,
concluded
as
Defendants review in this Appeals’ the conclusion that in this case the OTCA Court constitutionally adequate provide a substitute rem does not edy required part, I, under Article section 10. For his as challenges Appeals’ the Court conclusion also against spe regarding I, 10, OHSU; Article section claims his Appeals’ cifically, plaintiff the Court of con takes issue with sovereign clusion that OHSU would have been entitled to immunity at law. We allowed review to address the common important concerning adequacy of the OTCArem issues edy I, under Article section 10.5
II. DISCUSSION primary earlier, As noted issue this case is 30.265(1) 30.270(1), applied whether ORS and ORS begin 10. case, I, facts of this violate Article section We with OTCA, then turn to an overview ofArticle overview analyze at hand. I, section and then issue A. the OTCA Overview public immune from tort Before bodies were (1981).
liability.
Pernoll,
67, 69,
291 Or
added at the change. requested reasons for the state, which asserted three May Judiciary Testimony, Committee, HB House (statement Attorney Deputy Landau, 1991, Ex E of Jack General). provided for indemnification First, because law pur- “serve[d] naming parties no the officers as officers, state argued pose.” that the limi- claimants had Second, Id. some liability liability apply to the ofthe state did not tation on the loop- sought “plug individuals; therefore, the state Finally, were that “a lot ofresources hole.”Id. state noted spent” litigating properly which state officials are named in any given Here, Jensen, lawsuit. Id. the 1991 revision frames the issues in this case.
B. Overview Article
section 10
begin
by again quoting
We
our overview
the text of
section 10:
justice
secret,
“Nocourt shall be
but
shall be adminis-
openly
purchase, completely
tered,
and without
and with-
delay,
every
remedyby
out
man shall have
due courseof
person, property,
law
reputation.”
done him in his
added.)
(Emphasis
Pearce,
In Priest v.
411, 415-16,
(1992),
methodology
an examination of the text of the
history
provision,
vision, the
and the case law concern-
ing
provision.
applied
methodology
Id. This court
*10
I,
10,
the second clause of Article
section
in Smothers v.
(2001).
Inc.,
Transfer,
Gresham
The court then turned to the historical circum- provision. stances of the Id. The Clause, the court explained, commentary can be traced to Edward Coke’s on Chapter Magna the second sentence of 29 of the Carta of Chapter provides: 1225. Id. The translation of 29 imprisoned, taken, “Nofreeman shall be or or disseised be freehold, liberties, outlawed, customs, ofhis or or free or be
591
pass
nor will we not
exiled,
any
destroyed;
or
otherwise
or
him,
judgment of his
him, nor condemn
but
lawful
upon
man, we
by the law of the land. We will sell to no
peers, or
justice
right.”
man either
or
deny
will not
or defer to
Id. at
The Second Part
Coke,
Edward
(quoting
of
(1797)) (internal quota-
Institutes
the Laws
England,
omitted).
on that
commentary
tion marks
to Coke’s
According
evolved to a
guarantee
the second sentence
chapter,
of law for
every subject
remedy by
injury
had a
course
Smothers,
“In when the Constitutional Convention provided convened considerable courts and commentators had
insight background meaning into the remedy rights. clauses in state declarations or bills of Those purpose cases and commentaries revealed that the edy of rem- protect rights. clauses was to ‘absolute’ common-law injuries rights, For to those the remedial side of the com- provided mon law had causes of action were intended right justice. Remedy clauses mandated the to restore availability continued absolute rights.”
Id. at 112. the court examined the case law surround-
Finally, section 10. Id. at 115-24. Smothers cases, Early ing held that “the clause is to explained, purpose save from those which legislative jural rights abolishment had well to the enactment of our prior become established (internal Id. marks and cita- quotation Constitution.” omitted). course, changed tion This court’s jurisprudence *11 Court decision however, Supreme a United State following that a Pro- upheld guest passenger facing Equal statute v. Id. at 116-17 Silver (discussing tection Clause challenge. (1929)). Silver, L 221 There- 117, 57, 280 US 50 S Ct 74 Ed this court relied on Silver Remedy to hold that the after, com- abolishing Clause not from prohibit legislature does Constitution Oregon mon-law that existed when rights v. Perozzi Smothers, at 117 (discussing was drafted. 332 Or 592 (1935)).
Ganiere,
330, 345,
“[the and right injury person property, mon-law of action for legislature may change remedy while the procedure, or the form of exercise, and precedent attach conditions to its * * * remedies, new it perhaps abolish old substitute deny remedy entirely.” cannot (internal v. Oregon City, omitted), and 53 citations Batdorff 408-09, (1909), P held unconstitu- Or which away remedy tional a ordinance that took from those city city failure to maintain the streets. injured by negligent Smothers also looked to an federal court written early opinion Matthew who had been of the by Judge Deady, president that explained Constitutional Convention Clause as follows: meaning Remedy remedy guarantied by “[T]he [Article 10] is not novel, indefinite, or remote intended for injury redress regarded pale legal that was not then as within the stood, law, it took redress. But whatever then for, every cognizance remedy by of and furnished a man shall * * * remedy law. If continue to have a due course of away can taken [a] then known and accustomed be provision, may what other the face of this constitutional opinion, of novel legislature, spasm not? Can the some slander, away every take man’s assault bat- tery, recovery or the of a debt?” 1887). (D Clackamas,
Eastman v. County of
32 F
Or
Smothers
concluded
those,
cases,
and other
early
Based on
(1)
mandates
due
remedy by
Clause
*12
every person in the event of
available to
course oflaw shall be
(2)
process
“remedy”
injury;
both the remedial
includes
right
required
been
a
that has
what is
to restore
well as
(3)
wrong
injured;
“injury”
or harm for which a cause
is a
Oregon
Consti-
when the drafters wrote
of action existed
Smothers,
After following forth the above, outlined analysis the court in Smothers set applied Clause claims: to be alleged question “[T]he is whether the has first rights injury protects. I, that Article section 10 to one ofthe absolute differently, the drafters wrote the Stated when didthe commonlaw of Oregon Oregon Constitutionin recognize alleged injury? a cause action for the If the question yes, if has answer to that abolished is and the the common-lawcause of action for rights protectedby clause, that are then the sec- constitutionally question provided a ond adequate is whether it has cause of substitute common-law injury.” actionfor that apply analysis plaintiffs at Id. 124. We now the Smothers arguments I, under Article section 10. against
C. claim OHSU Plaintiff’s we is Smothers, Under the first issue must address recognized plaintiffs whether the common law would have negligence plain- claim OHSU contends that OHSU. against it, tiff have had a claim because OHSU would not sovereign immunity under the would have been entitled to Oregon. If would have been entitled to common law of sovereign immunity OHSU limi- law,
at common
then the OTCA’s
I,
Article
a claim
OHSU would not violate
tation of
recog-
law would not have
section
because the common
injury alleged.
against OHSU for the
nized a cause of action
508, 518,
As
the Court of
concluded
liability
that OHSU would have been immune from
at com-
rejected plaintiffs
mon law and therefore
argument regarding
App
Clarke,
OHSU.
at 622.
against pub-
The court reasoned that “a
lic
remedies
body
perform
created
the state to
functions on behalf of
[of
the state would have been understood
the drafters
the
on the
entirely dependent
Constitution] to have been
legislature.”
Appeals
will of the
Id. at 618. The Court of
con-
*13
public body
according
because,
cluded that OHSU was such a
creating it,
to the text of the statute
OHSU is a state-created
public corporation,
performs governmental
which
functions.
that,
Id. at 621-22. The court therefore held
because
right
would have had no
to a
absolute
common-law action
against
pro-
OHSU,
claim
OHSU was not
by
tected
Article
10.
at
section
Id.
622. We now address
plaintiffs challenge to that conclusion.
premise
“Our Constitution is framed on the
that the
* *
state is immune
suit
*.”
v.
from
Vendrell School District
No. 26C et 226 Or That premise IV, is embodied in Article section of the provides, part, Constitution, which in relevant “Provision may by general bringing law, made be suit originating existing State, after, as to all liabilities at the adoption [.]” time of the trine of this court of this Constitution Because the doc sovereign immunity implicit constitution, is
may
doctrine; instead,
not
the doctrine
abolish
may only
by
legislature pursuant
be waived or altered
general
Although
Vendrell,
law.
Our
cases
some
as to
instrumentality
what constitutes an
Hale,
of the state. In
this court concluded that the Port of Portland was an instru-
mentality
immunity
of the state entitled to
from civil lia-
bility. Hale,
that the State Board of
by
legislature.
powers
Id. at 600-
and duties as outlined
question
“[t]here
little
can be
The court concluded that
01.
Id. at 600.
is one
the state.”
that the action
but
concept
of
has also illuminated
This court
government
a chal-
in the context of
of
instrument
lenge
state
corporations
public
XI,
under Article
to the creation of
provides
Constitution, which
2, of the
section
may
general
“[cjorporations
laws, but shall
under
be formed
Assembly by special
by
Legislative
laws.”
not be created
Woolley,
37,
“allowsthe creation
stockholders;
citizens,
an instru-
are
not
‘whosemembers
powers,
delegated
government
sub-
certain
ment
with
of
legislature,
ject
offi-
and its members
to the control of the
agents
government
or
for the administration
cers or
”
discharge public
duties.’
(quoting
Woolley,
Portland,
v. The Port
at 47
Cook
302 Or
added)).
(1891) (emphasis
The court
580, 583,
Id. at
We now examine whether an OHSU is instrumental ity of the state and have, therefore, would been immune at prior common law. Plaintiff that, concedes OHSU instrumentality was an state, of the but asserts that since legislature public 1995, when the recreated OHSU as a cor poration, longer instrumentality OHSU no anis of the state. proceeding On the limited record before us in this we dis agree with contention. part
Prior to OHSU was of the State System Higher Education. Since OHSU has been a “public corporation” under 353.020; ORS that term is defined entity carry public public
“an that is created the state to out carry missions and services. In order to out these public corporationparticipates services, missions and provides providedby pri- activities or servicesthat are also enterprise. public corporation granted vate A is increased operating flexibility in success, order to best ensure its retaining principles public accountability while and fun- public policy. public damental The board of directors of a corporation appointed by is the Governor and confirmed delegated authority the Senate but is otherwise policy manage operations set corporation.” of the 353.010(2). legislature ORS The also decreed that OHSU governmental entity performing governmental “shall be a functions and
exercising governmental powers” and “shall be independent public corporation purposes with statewide explicitly and missions.” ORS Thus, 353.020. the statute states that OHSU shares the first attribute anof instrumen- tality performing providing functions or serv- state — government traditionally performed ices that has or provided. stated, however, also that OHSU municipal govern-
“shall not be considered a unit of local or agency purposes ment or a state of state statutes or con- provisions.” stitutional view, 353.020. our this state- ment does not alter our conclusion that OHSU would have been considered immune at common law. Whether OHSU is municipal government” to be considered “unit of local or agency” inquiry determining a “state is not the end of if *16 An at common law. immunity have enjoyed OHSU would even if it is nei- of the state” “instrumentality can be an entity To agency. or a state municipal government ther a unit of instrumen- OHSU is an make the determination of whether the entire context of state, we must examine of the tality That statu- corporation. OHSU as a public statutes creating that OHSU is below, demonstrates context, as examined tory entitled that would have been of the state instrumentality at common law.8 immunity of some statutes, specified the legislature those the mis- functions, in describing and public OHSU’s services Specifically: of OHSU. sions and purposes “(1) Oregon of the Health public policy be the It shall missions as a University carrying out its Science and public corporation:
“(a) Oregon by pro- of of the State people To serve health, science, engineering and their viding education region. and students of the state management for “(3) carry out the fol- university designated to The is of the State missions on behalf purposes and lowing public Oregon: of “(a) appro- programs educational high quality Provide university; for a health and science
priate
“(b) care, engineering, in health Conduct research sciences; general and sciences biomedical “(c) outpa- inpatient of Engage provision in the systems delivery care care and health tient clinical state; throughout the
“(d) education, research programs Provide outreach care; and health
“(e) local, and statewide resource regional Serve as providers; health care “(f) health care to provide a commitment Continue Oregon. of patient population the underserved OHSU, applicable under specifically made the OTCA is We note also that 353.100(1). “(4) public purposes university carry shall out that, manner in the this section in the and missions of University Oregon Health and Science determination of the Directors, welfare of the promotes public Board best Oregon.” of the State of people purposes, include therefore,
ORS 353.030. OHSU’s
people
“promot[ing]
the State
welfare of
providing
part through
education and health
[,]” in
353.030(4).
people
Without
of the State. ORS
care to
question,
particular
health
combination of education and
teaching hospital
tradi-
in the form a research and
is
care
tionally
performed
last
state, at least for the
a function
(one
e.g.,
century. See,
&
OHSU also the attribute instrumentality Yost, the state. In & this court of James possessing pow- an the those described instrument of state [it].” 353.050, ers “as the state entrusts to Id. at 600. ORS “[p]owers legislature duties of outlined more than 20 and including university setting policies officials,” for board and university, entering including partner- contracts, into joint ships entering real transac- ventures, and into estate suing being investing name, funds, and in tions, sued its own borrowing developing programs. funds, and academic power granted or The also the board OHSU any judgment “[p]erform that the board to or other acts in the of university necessary requisite, appropriate or are carrying accomplishing purposes in or out the described 353.050(25). granted by chapter.” powers This list this ORS though suggests by legislature, powers broad, outlined instrumentality OHSU is an of the state. impor- governance also structure of OHSU is an instrumentality the state. indicator that OHSU is tant who, board directors consists of members OHSU’s except president, appointed are Governor OHSU’s 353.040(1). Except confirmed the Senate. ORS president member of the board and a student OHSU’s four-year directors, each member serves a term. ORS 353.040(2). authority The Governor has the to remove board hearing. cause, member for after notice and 353.040(7). charged “exercising] The board is with all powers Oregon University” of the Health and Sciences “governing] university.” carrying ORS 353.050. In powers, university governmental out those “the shall be a entity performing governmental exercising functions and governmental powers.” Id. entirety
Based on the of the statutes discussed above, instrumentality we conclude that OHSU is an performing agree state state functions. We therefore with the Appeals’ Court of conclusion that OHSU would have been immunity entity entitled to at common law. When an would liability legisla have been immune from ture’s choice to limit that law, at common
entity’s liability
does not violate
Article
Hale,
10.
On
defendants offer several
porting
Appeals
their assertion that the Court of
erred in
9
briefly
plaintiffs argument
damages
We
address
that the
limitation of the
right
jury
I,
I,
OTCA violates his
to a
trial under Article
section 17. Article
section
17,
any
theory
recovery. Jensen,
is not the source of
substantive claim or
of
334 Or
Instead,
Products, Inc.,
at 422.
as this court summarized in Lakin v. Senco
62, 82,
(1999),
I,
17, “guarantees
jury
instead, defendants contend “substantial” very process most, or, at the that a sub- refers to the remedial remedy only illusory the need one that is not stitute be practical equivalent remedy of no at all.10 foregoing,
From the state contends that the court the remedy legislatively review a substituted on a cate- should gorical way, only. suggests Put that basis another the state of a substitute is ade- the determination whether quate case, on of an individual but should not focus the facts legislature on struck the instead should focus the balance creating remedy. that, a substitute The state asserts category potential plaintiffs unless a left a rem- is without legislative edy, policy choice is conclusive. hand,
On the other contends that procedure seeking protects Clause both as well Plaintiff redress as substance that redress. argues a that, farther when the abolishes remedy, provide it is “sub- common-law must remedy. stantially equivalent” to the common-law 10, chal- I, This has addressed Article section court lenges prior Hale, this to OTCA on three occasions. challenge rejected to OTCA an Article court section City applied brought of Portland as to an action “remedy” guaranteed by Defendants’ contention only administering justice, process to and not the substance refers Smothers, remedy afforded, decision in 332 Or at is contradicted our seeking process ‘remedy’ we word refers both a remedial noted earlier: “The injured.” right required is restore that has redress for and to what been *19 (Port).
(City) and the Port ofPortland
Hale,
limitation as to the claim explained Id. at 521-24. The court that Article section permits legislature remedy, to alter a common-law “so long party injured entirely remedy. as the is not left without a * * * [T]he remedy precisely type need not be of the same enough remedy extent; it is that the is a substantial one."Id. added). (emphasis upholding at 523 the OTCA’s emphasized limitation, Hale that the had struck a municipal corporations new potential balance between plaintiffs. Id. The court concluded that the available plaintiff although was “substantial” because, the OTCA potential recovery, reduced expanded the size of the it also requiring class of that could recover not plaintiff municipal corporation to demonstrate that the was engaged proprietary activity injured plain- in a when it quid pro quo tiff. Id. The court described that as follows: counterbalancing “A conferred, benefit has been but a bur- imposed. may disadvantage den has been This work to the advantage some, of all whohad a while it will work to the of others. But may continueto have one.This not be may what wants. It court, not evenbe what this if making it were in the business of substantive law on this subject, legisla- wouldchooseto enact. But it is within the authority spite ture’s to enact in of the limitations of the OregonConstitution, Article section 10.” asserting separately, Linde concurred Id. at 523. Justice legislative cities from immunization of has allowed “the court tort liability only are the individuals who on condition that legal qualifying personally responsible as a for harm claim Because Hale included no remain Id. at 530. liable.” *20 agreed public against Linde with officers, Justice individual Id. the court’s conclusion. the OTCA’sconstitution
The court next addressed
ality
Chartier,
in Neher v.
I,
10,
under Article
section
(1994).
plaintiffs adult
case,
In that
417,
11 30.265(3)(a) provided, part: ORS officers, acting “Every body employees agents within the and its * * * duties, liability
scope
employment
for:
their
are immune from
“(a)
any person
by any
Any
workers’
claim for
to or death of
covered
compensation law.”
(2002),
210, 222-23,
McClung,
court dis
Or
Most
dismiss
claims
pur-
them and to substitute the state as the sole defendant
suant to ORS
30.265(1).
pending,
Id. While that motion was
certify questions
moved the district court to
30.265(1).
constitutionality
this court
to the
as
of ORS
Id.
questions
This court declined to consider
of the certified
presented
“as-applied” challenges
30.265(1);
to ORS
only
challenges
instead, the court considered
facial
Addressing
challenge
statute. Id. at 415-16.
the facial
under
applied
two-step analysis
Article
section
court
this
governing
Smothers,
claims set forth in
plaintiff
alleged
remedy
has
is one which
the
clause
guarantees
tively,
remedy.
question
If
a
we answer that
affirma-
if
and the
has abolishedthat common-law
step
leg-
claim,then our second
is to determinewhether the
provided constitutionally adequate
islature has
a
substi-
remedy
tute
forthat abolishedcommon-lawclaim.”
(internal
omitted).
Jensen,
334 Or
citation
The court
deciding,
injury alleged
assumed, without
that the
was one
guarantees
remedy.
I,
for which Article
section
a
Id. The
30.265(1),
analyzed
required
court then
whether ORS
which
plaintiff
bring
body
alone,
to
an action
constitutionally
provided
adequate
remedy.
a
substitute
Id.
capable
at 418-21. The court concluded that the OTCAwas
of
application.
constitutional
Id. at 421. The court reasoned:
every
damages ‘cap’
implicated
case,
“Because
and
is not
damages
yet
a
award has
to be determined in
because
remedy
damages ‘cap’
case,
this
does not render
right
plaintiff ‘incapable restoring
available to
that
”
injured.’
has been
119-20).
(quoting
This court
Or at
Smothers, 332
Id. at
30.265(1)
face, vio-
not, on its
does
that ORS
therefore held
421.
Jensen,
of the
Clause at
that Arti-
observe
I,
10,
cle
section
does not “freeze
in
common-law rem-
place
[ ]
edies.” Id. at 119.
Instead,
legislature may
alter common-
remedies,
not substitute
an ‘emasculated
“may
law
but
that has
remedy
incapable
is
been
restoring
right
Id. at 119-20
v.
Jaloff,
West
184,
113 Or
injured.”
(quoting
(1925)).15
195,
In this court has held that Article consistently statement, section is not an but was merely aspirational intended the framers of the Constitution to Oregon pre serve for future or other generations, legislative encroachment, a for right remedy injury obtain under circum person, property, reputation interests a for Oregon proyided remedy stances which law those See, e.g., when ratified its constitution. injuries (“At Smothers, minimum, remedy by 332 Or at a to be law, due course of must be available for statutory remedy the same or harms for which the common-law cause wrongs 1857.”). However, of action existed in as our review of the demonstrates, cases does not eliminate the form power vary modify both recovery injury, and the measure of for an as it does long not leave the with an “emasculated” version of injured party that was available at common law. remedy identify
The constitution’s terms do not what would an of a due deprivation “remedy by constitute impermissible * * Const, done Or Art 10. That injury course of law § (as does) an affirmative guarantee it phrase embodying action rather than a more familiar restraint on government mandate, has or a particular lawmaking procedural pro- in our cases. It inconsistency may duced some be degree injuries, despite a court held that ambulance drivers would remain because such a construction took court’s decision in West. tion on recoverable ing remedy culated did not court also some other Smothers’s use of the involve —and remedy wholly inadequate for a explained private efficient statute damages. that such a therefore did not Smothers, that could have been construed to limit such committed phrase in its away under “emasculated place.” “from by private provide “could not be many Id. 119-20. conditions.” —an injured person (emphasis remedy” liable citizen and analysis taken West, added). (Emphasis has its away of a negligently gives 113 Or at good statutory without West, origins him an emas common-law added.) however, liability, inflicted provid limita this this
607
that some of the
stems from an erroneous con-
inconsistency
sideration of Article
as a “due
of law”
process
(so
Perozzi, 149 Or at
clause. See
Other
holding).16
prob-
350
when, understandably,
litigants
lems arise
advocate for
analysis
modes of
and formulas without
to the context
regard
Hale,
in
them. For
in
example,
which this court has discussed
the court determined that a limited remedy against public
However,
bodies for
personal
injury
permissible.
was
Hale
court in
had
no occasion to consider the constitutional-
ity of a
scheme that altered the common-law
liability
right
victim
a
action
indi-
any
to
personal
injury
bring
Hale,
vidual
the full
tortfeasor
for
amount.
308 Or at
damage
(“this
(Linde, J.,
case
no claim
concurring)
presents
30.265”).
or
against public
employees
agents,’
‘officers
or
Similarly, Greist involved the
context of a
special
statutory
limitation on a
that
remedy
itself had created
Hale,
and,
for
death
like
wrongful
did not consider a limit on
tortfeasor. See
a common-law remedy
an individual
Greist,
Smothers a more represents recent effort this court to identify substance of the remedy guarantee the context of a personal incurred injury by plaintiff while for a working private court, This earlier employer. citing cases, acknowledged legislature’s reservoir of lawmaking authority adjust remedial rem- processes substantive edies to satisfy constitutional command to “rem- provide * * Smothers, due edy by course of law for injury 332 Or at However, 119. in focusing on that this court stated authority, that alteration may not substitute an “emasculated” ver- was available at common law. Id. sion of the 119-20.
Our assessment of the
done
in his
“injury
[plaintiff!
is
in the context
Plain
person”
relatively simple
of this case.
tiff
and defendants admit for
alleges,
purposes
pro
this
that, due
ceeding,
suffered here as a
personal
of defendants’
has suffered
consequence
negligence, plaintiff
$11,073,506,
economic
the sum of
for
damages
anticipated
$1,200,000
life and health care
for lost future
expenses,
process
question
We need not revisit the “due
of law”
to decide this case. This
Smothers,
reasoning
court disavowed that
earning capacity, $12,273,506. total economic alleges, admit, and defendants Plaintiff also $5,000,000. in the has suffered noneconomic sum dispute Oregon adopted that, There is no guarantee, plaintiff when its and, if would have been entitled seek types of from the individ- successful, to recover both ual defendants. legis- amendment OTCA, to the
With the 1991 recovery plaintiffs right to seek a full lature eliminated torts committed employees, agents. public officers, That *24 any injured person, circumstances, in those amendment left damages capped remedy and $100,000 with a of in economic body damages against public $100,000 in noneconomic only.17 entirely any against eliminates claim The statute also by requiring the individual tortfeasors substitution of those body as the sole individual defendants defendant. attempt justify
The individual defendants
to
statutory
liability by
complete
of their
contend-
elimination
body
ing
damage
against public
that ORS
that the
awards
a
30.270(1)
adequate “remedy by
an
due
allows constitute
arguing, they rely
opinion
In
on this court’s
course of law.”
so
indicates, Hale is
Hale, however,
as our discussion above
statutorily
distinguishable.
adequacy
a
Hale examined the
of
monetary remedy
against public
capped
in a claim
bodies.
respect
511-12,
case,
521-24. In that
with
to
Hale,
damages, exceed but in no event shall the total award of $100,000.” above, damages damages, are described as noneconomic General as noted now nonmonetary losses, including damages pain suffering, encompass and for and See, distress, e.g., reputation, companionship. ORS emotional 31.710(2)(b) and loss limiting damages (defining of a statute noneconomic the context cases). Special damages recovery damages now are in civil for noneconomic losses, damages out-of-pocket to the verifiable described as economic and refer earning impairment including expenses, loss of income and future medical (defin- 31.710(2)(a) See, damaged property. e.g., capacity, repair and costs to ing damages). economic sovereign enjoy municipal immu- not defendant that did the nity, injured plain- analysis did not address the court’s right full relief from individual tiffs traditional seek statutory here, scheme at issue Id. at 521-24. The tortfeasor. any tort- claim an individual contrast, eliminates in this case. not assist the defendants feasor. Hale does support defen- the individual Neither does Greist statutory damage explained limitation above, the dants. As recovery percent eco- of 100 at issue in Greist allowed damages. damages up in noneconomic $500,000 and nomic recovery Placing eco- at 291. no limit on Greist, 322 Or fully plaintiffs their out-of- allowed to recover nomic pocket including expenses medical, burial, for and losses, explained Id. The court also memorial services.
wrongful case, “came exis- claim, death at issue in that into historically, recovery that, tence with a limitation” wrongful context, had Id. Considered in that death been low. legislative that the choice did not violate the court concluded legislation contrast, under section 10. Id. recovery legisla- merely adjust review here does not tively scheme; instead, created remedial it eliminates a remedy against common-law an individual tortfeasor.
We view economic of over representative of lifetime million as of the enormous cost $12 currently permanent medical care associated with *25 personal injuries by negligence severe a state caused the medical of agent, argue employee. not
officer, or Defendants do damages “injury” within the that those do not constitute anything legis- meaning in the of the constitution. Nor does suggest by legislature. Yet, lation such a conclusion the injured person’s legislature completely has eliminated an right recovery damages preexisting a full for those to obtain negligently individual tortfeasors who caused the from the injuries. legislature explained, is authorized As we have vary modify nature, or I, 10, under Article section to remedy. recovery for a common-law form, or the amount of However, that authority clear, we not unlimited. To be is goal amending respect legislature’s the OTCA goal legislature that the entitled to conclude 1991—the was encouraging public employment qualified health care professionals by protecting litiga- them from the demands of personal liability important tion and the threat of anis one.18 simply nothing However, there is can we discern from history, our nature, form, state’s or from the or the recovery preexisting amount of available for the common-law permit claim, that would this court lim- to conclude that the permanent by ited and severe caused med- negligence ical that is now available under the OTCA meets remedy requirement. I, the Article section (1) sum, we hold OHSU would have been sovereign immunity entitled to fore, and, at common law there- against would have had no common-law claim protection OHSU that 10; entitled I, is under Article section (2) sovereign immunity, because OHSU is entitled to against can limit recoverable OHSU to chooses, I, amount it unfettered section 10’s (3) Remedy Clause; however, the elimination of a cause of 30.265(1), public employees agents in action or ORS applied as claim the individual defen- dants, I, violates the Clause of Article section remedy against body, because the substituted 30.270(1), specified in ORS anis emasculated version of the remedy that was available at common law.19 Appeals
The decision ofthe Court of is affirmed. The judgment of the circuit court is reversed and the case is proceedings. remanded to the circuit court for further concurring. BALMER, J., injured by negligence Plaintiff medical was (OHSU). employees Oregon University Health and Science note, however, professionals provide patient We that OHSU health care who system, pursuant private relationship care outside of the OHSU to a between the 30.268(2) the OTCA. See patient professional, protected and the are not (noting constituting patient provided other that “services care that are at a location campus scope employment [OHSU clinics] than the are not within the of state or exclusively provided pursuant private are to “an rela duties” when those services tionship”). OTCA, case, concluded that the in this violates Article Because we have plaintiffs argument not that the limitation of we need address right jury his trial under Article section 17. OTCA violates *26 (which pur- present damages OHSU, for suffered Plaintiff poses, primarily dispute) million, of at least does not $11 Oregon’s past care. current his and future medical the cost of recovery $100,000 for economic limit statutes damages losses) (medical wages, and costs, lost and similar damages, pain such as $100,000 for noneconomic another analysis agree majority’s suffering. I the and with with the lead to that result its conclusion that statutes deprive had at common law of a that he remedy, providing adequate in viola- an substitute without “Remedy 10, of the the Clause” of Article tion of Oregon Constitution. separately points. First, two the
I to make write plaintiff here should have limit on the available to ago by legislature legisla- long been increased —and opportunity appropri- take this to reconsider the ture should malpractice ate claims act limits for medical claims tort against majority correctly Second, states that the OHSU. Remedy legislature prevent modi- Clause does not from fying recovery or amount of even from eliminat- form —or adequate ing long provides an claims, as as it —common-law remedy. cases, that, substitute I would add under this court’s legislatively damages injured imposed a limit that an on patient may employees and its would recover OHSU long not violate the Clause as as that limit does not remedy. deprive patient of a Those cases “substantial” majority’s also decision does not demonstrate existing threaten statutes in which the has action, altered or eliminated common-law causes of such as compensation system. the workers’ begin point apparent
I with a that should be to all arbitrarily cap parties low on and amici this case: damages malpractice for medical claims OHSU long legisla- employees problem called for a its is a that has imposes cap present claims act tive solution. The tort damages $100,000 and another $100,000 for economic agencies public committed noneconomic for torts employees regard the nature of the tort. and their without appropriate may for most Those limits well be ORS 30.270. by public employees. Car accidents in which torts committed public employee fault; failure to clear ice from a is at leading sidewalk from —the *27 may occasionally cap, injuries those kinds of exceed but ordinarily they It is for that reason that drivers and will not. carry per person $100,000 often insurance of homeowners per tragically $300,000 But, and accident. as this case so malpractice medical claims is such illustrates, the nature of expenses damages in future medical and lost that the form of wages often can be hundreds of thousands or millions of dol- malpractice insur- reason, lars. For that doctors don’t have virtually every $300,000; rather, doctor in $100,000 ance of or coverage Oregon malpractice has medical insurance of at maintaining coverage many million, least with doctors $1 per million occurrence.1 million or $3 $5 by The insurance obtained individuals for claims by arising driving homeownership from their and doc- —and necessarily malpractice claims—does not determine tors for pur- liability legislature should set for the limits of poses that the Oregon Act, Claims let alone the level that is ofthe Tort Remedy very required however, least, Clause. At the regard- private the decisions of ing individuals and institutions coverage provide some indication of the their insurance private ordinarily and, actors face indi- kinds of claims those likely rectly, remedy kind of for those claims would be ofwhat Remedy purposes “adequate” of the or for “substantial” Clause. every Oregon virtually event, In the fact that malpractice insurance that far exceeds doctor carries employees suggests caps applicable to OHSU and its changed. my legislature view, those limits need to be malpractice claims, increase should, at least for medical substantially immediately per- existing and, claims limit and retroactively. haps,
My point to the standards which second relates legislative modifications of common-law this court reviews they are consistent to determine whether causes of action from 45 tors had Professional tice Insurance (up from 22.2 According percent malpractice Liability percent Availability to one 1996), insurance with a Insurance, comprehensive while 26.8 1996). Affordability p A Report percent survey, per Professional occurrence on Factors had a 2003,34.9 (2004). per Panel for occurrence Impacting limit of million percent $1 Analysis Medical limit of million Oregon of Medical $5 (a Malprac decline doc Remedy Clause cases with the Clause. This court’s changing legislature adjust Oregon cir law to allow the cumstances action or action; however, by creating, eliminating, altering or causes of providing defenses or immunities to the cause of changes
if
eliminate a common-law
those
legislature
provide
must
an
that existed
remedy.
adequate
v. Gresham
See Smothers
substitute
(2001). major
Inc.,
83, 124,
This has not articulated a precise majority probably possible test, and it is not do so. As the try identify
notes, we have used different words to
remedy
Many
required.
simply
what kind of
is
cases
have
legislature may
plaintiff
held that the
remedy,”
leave a
not
“without
Astoria,
577, 579,
Mattson v.
39 Or
Plaintiff that statute damages plaintiff have recovered at com- on the that a could Remedy plaintiffs per- Clause. From mon law violates the Remedy respect, disagree spective I with —the but —which eliminating plaintiffs prevents legislature the from Clause against individual defendants in this case cause of action long substituting defendant, as OHSU as the sole liability. any Plaintiff asserts that there is limit on OHSU’s a limit of million or million even if the set $1 $10 liability, unconstitutional as on OHSU’s that limit would be damages applied any plaintiff exceeded whatever whose position happened that to be.2 Plaintiff takes the limit plaintiff action law, common had a cause of because, at damages, against defendants for all his with- the individual any limit out whatsoever. position supports plaintiffs that case
No
applied
when
act limit would be unconstitutional
tort claims
to a
damages
plaintiff
exceeded that limit. Hale is
whose
directly
upheld
point.
a tort
There, this court
almost
on
City
against
damage
$100,000 on a claim
claims
limit of
(1)
alleged
though
plaintiffs
economic
Portland,
even
(2)
damages
law, the
$600,000, and
at common
exceeded
city
for an
had a claim
would have
(because
city
against the claim was
unlimited amount
rejected
acting
proprietary capacity). This court
in a
argument
plaintiffs
limit
$100,000
that the
on
city
violated the
could be recovered
exceededthat amount.
Clause because
cap, although
upholding
“alimit
court concluded
As this
may
placed
be recov-
on the size of
award
has been
persons
have one.”
had a
continue to
ered,” all
“who
*29
in
case,
to this
the court
Plaintiff asserts that Hale is
did not involve a claim
case,
one,
that
unlike this
legislature
that the
had eliminated.
individual defendants
Although
upon
in
Justice Linde relied
that fact
his concur-
(Linde,
ring opinion,
concurring), played
J.,
Greist
322 Or
case on find majority opinion holdings cases undermines those prohibit that the Clause does not imposing caps long caps from on tort as those do 3 Indeed, majority part reaffirms OHSU’s status as of the state and there immunity, partaking sovereign except fore of the state’s to the extent waived statute. *30 Hale and remedy.” a of a “substantial deprive plaintiff
not Greist both may regard hold that the act with legislature limit on cer- classes statutory of claims or and that a Clause, Remedy tain kinds of claims does not violate the even limit the that can be recovered a may damages it though view, a claim. In my particular plaintiff particular in this case is not statutory with the scheme issue problem rather that a liability capped, cap the fact that OHSU’s is but $100,000 for nonecon- $100,000 for economic damages mal- for medical damages remedy omic is not substantial claims. practice summarize, 10, does not “freeze
To
existed when the
common-law causes of action that
place
Smothers,
in 1857.”
drafters wrote the
Constitution
those rem-
Rather,
may modify
Or at 124.
the legislature
claim,
the nature of the
plaintiff’s
edies by changing
defenses,
plain-
the amount of
that the
available
or
retains a substantial
recover,
long
tiff
as the
may
plaintiff
done him in his
person, property,
repu-
“for
Here, the modification made
legislature
tation.”
—the
the individual defendants
of the claims against
elimination
defendant,
as the
with
only
and the substitution of OHSU
not
leave
liability
on OHSU’s
described above —did
caps
claim.
malpractice
for his
with
substantial
case
That
of the issue
this
also
understanding
under-
in the
nothing
majority’s opinion
demonstrates
adjusted
has
legislature
mines other statutes
which
The most obvious example
and liabilities.
rights
common-law
Smothers,
In
this court
system.
compensation
is
workers’
* * * rec-
“implicitly
the court’s earlier decisions
stated
authority
constitutional
substi-
ognized
legislature’s
negligence
for the common-law
compensation
tute workers’
ing certain and has modified common-law causes of activities involving participate those who in such activities. action limit the circumstances in which “GoodSamaritan” statutes injured by emergency person person provides another who transportation, assistance, medical or treatment defibrillator damages. 30.800; 30.802; can recover See ORS ORS ORS provide 30.807. Other statutes individuals with limited immunity reporting abuse, 419B.025, child and for disclosing employee information about former to a new employer. leg- statutes, ORS 30.178. those and similar islature has modified the common-law cause of by, example, requiring prove “gross action negligence” “negligence,” by providing rather than limited immunity to defendants for some kinds of conduct. The majority’s decision, like this court’s earlier Clause respond perceives cases, allows the to what it important public policy long needs, be as it does not elimi- providing nate a common-law cause of action without an ade- quate remedy. substitute joins concurring opinion. J.,
Kistler, this