Bobbi KLUTSCHKOWSKI and Kevin Klutschkowski, personally and as guardians ad litem for Braedon Klutschkowski, a minor child, Petitioners on Review, Cross-Respondents on Review, v. PEACEHEALTH; Amy McCarthy; Center for Women‘s Health, P.C.; Zena I. Monji; and Zena I. Monji, M.D., P.C., Defendants, and OREGON MEDICAL GROUP, P.C., Respondent on Review, Cross-Petitioner on Review.
CC 160615518; CA A138722; SC S059869
In the Supreme Court of the State of Oregon
September 26, 2013
311 P3d 461 | 150 Or 150
Argued and submitted September 17, 2012; resubmitted January 7, decision of Court of Appeals reversed in part and affirmed in part, judgment of circuit court affirmed September 26, 2013
Bobbi KLUTSCHKOWSKI and Kevin Klutschkowski, personally and as guardians ad litem for Braedon Klutschkowski, a minor child, Petitioners on Review, Cross-Respondents on Review, v. PEACEHEALTH; Amy McCarthy; Center for Women‘s Health, P.C.; Zena I. Monji; and Zena I. Monji, M.D., P.C., Defendants, and OREGON MEDICAL GROUP, P.C., Respondent on Review, Cross-Petitioner on Review. (CC 160615518; CA A138722; SC S059869)
311 P3d 461
Matthew J. Kalmanson and Janet M. Schroer, Hart Wagner LLP, Portland, argued the cause and filed the briefs for respondent on review/cross-petitioner on review. With them on the briefs was Marjorie A. Speirs.
W. Eugene Hallman, Pendleton, filed the brief for amicus curiae Oregon Trial Lawyers Association.
KISTLER, J.
Landau, J., concurred and filed an opinion.
Plaintiffs brought this medical malpractice action to recover for injuries that their son sustained during delivery. On review, the issues are whether
I
We set out the facts consistently with the jury‘s verdict. See Mead v. Legacy Health System, 352 Or 267, 269 n 2, 283 P3d 904 (2012); Delaney v. Taco Time Int‘l, 297 Or 10, 12, 681 P2d 114 (1984). Mother and father have four children. When mother gave birth to her fourth child Braedon, he sustained an injury to the nerves that control the use of his arm. That injury is more likely to occur when a condition known as a shoulder dystocia has occurred during a previous delivery and when the child‘s fetal size exceeds a certain weight.
A shoulder dystocia occurs when an infant‘s shoulder becomes stuck behind the mother‘s pubic bone as the infant travels down the birth canal. When a shoulder dystocia occurs, the delivering physician customarily uses one of two maneuvers (the McRoberts maneuver or the Woods corkscrew
The second factor that increases the risk of a brachial plexus injury is the infant‘s fetal size. An infant whose fetal size exceeds 3500 to 4000 grams is more likely to sustain a brachial plexus injury during birth because of the increased traction that a relatively large infant experiences as he or she travels through the birth canal. The expert medical testimony in this case permitted the jury to find that, when those two risk factors are present, the standard of care requires an obstetrician to inform an expectant mother of the risk of a brachial plexus injury if she delivers the child vaginally and to discuss the option of proceeding with a caesarian delivery, commonly known as a C-section.
In 1999, mother gave birth to her third child Anna. When Anna was born, she weighed 4135 grams, and her delivery was complicated by a shoulder dystocia. Dr. Powell, the obstetrician who delivered Anna, worked for defendant Oregon Medical Group (defendant or the Medical Group). Powell diagnosed the shoulder dystocia but did not mention it to mother. In the hospital chart, he documented that “[t]here was a shoulder dystocia [which he] managed by shoulder rotation maneuver with the patient‘s hips in a flexed position.”2 Anna did not suffer any injuries as a result of the shoulder dystocia.
During the third trimester of mother‘s pregnancy with Braedon, McCarthy observed that Braedon was “large for [his] gestational age.” To determine Braedon‘s actual size, McCarthy ordered an ultrasound, which revealed that Braedon weighed 3964 grams. Because mother was concerned about the size that Braedon would reach by the time she went into labor, she asked, and McCarthy agreed, to induce labor early. However, after receiving the results of the ultrasound, McCarthy did not tell mother that the baby‘s fetal size increased the risk of a shoulder dystocia and a brachial plexus injury, even though that risk factor and the earlier shoulder dystocia were both present. By that time, McCarthy had forgotten that a shoulder dystocia had occurred during Anna‘s delivery.
Mother went into labor before it was scheduled to be induced. When she arrived at the hospital, McCarthy was unavailable; so, Dr. Monji, the on-call obstetrician, assumed responsibility for delivering Braedon. (Monji was also an employee of the Medical Group.) When Monji spoke with mother before the birth, she asked mother whether there had been any complications in her previous deliveries. Mother replied that there had not been. Additionally, the prenatal record that the Medical Group sent to the hospital did not contain the notation of the earlier shoulder dystocia or the results of the ultrasound and fetal size determination. Monji accordingly did not discuss with mother the risks of proceeding with a vaginal delivery rather than a C-section.
Braedon was born with bruises on his right arm, shoulder, and areas of his chest. After the delivery, the range of motion in his right arm was limited, and he was transferred to the neonatal intensive care unit for observation. When he was released from the neonatal unit the next day, Braedon‘s color had substantially returned to normal, but the range of motion in his right arm remained limited. Braedon was eventually diagnosed with a brachial plexus injury, an injury that has substantially impaired Braedon‘s use of his right arm.
Mother and father (plaintiffs) filed this action for medical malpractice against the Medical Group and various other defendants.3 Before trial, they amended the complaint to allege claims against only the Medical Group, Dr. Monji, and Dr. McCarthy. The day before trial, they dismissed their claims against Monji and McCarthy, leaving the Medical Group as the only defendant. Plaintiffs alleged that the Medical Group was negligent:
“[(1)] In failing to inform [mother] that the occurrence of shoulder dystocia in the March 3, 1999, delivery and the fetal size determination by Dr. McCarthy and by the April 23, 2004, ultrasound increased the risk of shoulder dystocia occurring in a vaginal delivery of Braedon Klutschkowski;
“[(2)] In failing to inform [mother] that there was increased risk of Braedon Klutschkowski suffering a brachial plexus injury if shoulder dystocia occurred during his delivery;
“[(3)] In failing to offer [mother] the option of a C-section as an alternative to a vaginal delivery of Braedon Klutschkowski;
“[(4)] In failing to document in [mother‘s] pregnancy record for her pregnancy with Braedon Klutschkowski the occurrence of shoulder dystocia during the March 3, 1999, delivery; [and]
“[(5)] In failing to inform Dr. Monji of the occurrence of the shoulder dystocia in [mother‘s] March 3, 1999, delivery, of Dr. McCarthy‘s assessment of Braedon‘s fetal size as large for gestational age and of the April 23, 2004, ultrasound documentation of an estimated fetal weight of 3964 g. and greater than the 97th percentile[.]”
In a separate paragraph of the complaint, plaintiffs alleged that the Medical Group “did not obtain [mother‘s] informed consent to delay Braedon Klutschkowski‘s delivery past [the date of the ultrasound], and to deliver Braedon Klutschkowski vaginally rather than by cesarean section.” Finally, plaintiffs alleged that, as a result of the Medical Group‘s negligence and failure to obtain mother‘s informed consent, “Braedon Klutschkowski suffered permanent and severe birth injuries when he was born on or about May 2, 2004.”
We discuss below the specific objections and rulings that have given rise to the petition and cross-petition for review in this case. At this point, it is sufficient to note that the jury returned a general verdict, finding that the Medical Group had been negligent. It awarded plaintiffs $557,881.11 in economic damages and $1,375,000 in noneconomic damages. After the jury returned its verdict, defendant moved to impose a $500,000 statutory cap on the jury‘s award of noneconomic damages. Plaintiffs responded that applying the cap would violate
On appeal and again on review, the parties debate whether the trial court erred in instructing the jury and whether applying a statutory cap to the jury‘s damages award would violate the Oregon Constitution. We begin with defendant‘s challenges to giving plaintiffs’ requested instruction on informed consent and to declining to give defendant‘s requested instruction regarding its responsibility for its employees.
A
Defendant argues initially that the trial court erred in giving plaintiffs’ requested instruction on informed consent. Because the Court of Appeals ruled that defendant did not preserve its objection to that instruction or properly except to it, we set out defendant‘s objections and exception to the instruction. We then consider whether defendant‘s objections and exception were sufficient to preserve the issue it sought to raise on appeal. Because we conclude that they were, we consider finally whether the trial court committed reversible error in instructing the jury on informed consent.
At multiple points during the trial, the parties discussed whether and how
“THE COURT: A woman shows up. She‘s pregnant. Her first set of options is have the child, not have the child. She decides on having the child. Everyone, I gather from the testimony I‘m hearing, decides it will be vaginal. That‘s the, for lack of a better term, the default position. Your position [defendant] is that informed consent is not required because [a vaginal delivery is] the default position.
“[DEFENSE COUNSEL]: Right. Yes. I mean, I don‘t know how-let‘s assume there‘s no-there‘s no discussion at all, and the vaginal birth just occurs. Can the mother then just sue the doctor because, you know, she-she experiences complications and then says, hey, you didn‘t tell me a pregnancy was dangerous, you didn‘t tell me a vaginal delivery could cause me problems[.] I wouldn‘t have done it otherwise. I just-it doesn‘t follow. There‘s-you can‘t obtain informed consent for a vaginal delivery.”
The trial court explained that it had difficulty reconciling defendant‘s position that informed consent is never required and plaintiffs’ position that it is always required. It asked defense counsel:
“[I]f you take vaginal delivery as a default position, but [if you do] not automatically assume there‘s no informed consent required [as defendant does], nor automatically assume that it must be required [as plaintiffs do], then is the determination of the duty not the jury‘s?”
Given that question, defense counsel answered, “It‘s the jury‘s. It‘s the jury‘s determination.” The trial court then asked, “So, if that‘s correct, then does this [instruction on
After considering the parties’ objections, the trial court told the parties that it would take the objections that they had made on the record as exceptions and that they need not renew those exceptions after the court instructed the jury. Specifically, the trial court told the parties:
“All right. I‘m going to ask for exceptions after I instruct, and if you want to just be extra careful with your record, you can do that, but I‘m going to just-I‘m going to tell you now that any disagreement you have on the record or any disagreement you have by virtue of an instruction you offered the court that I haven‘t given, I will take that right now as an exception, and I don‘t feel the need to add to that.
“The purpose of the change in [
ORCP 59 ] is to articulate [a] reason that might, change my mind. And I spent a couple weeks thinking about these things, and I know that the three of you have spent far more than a couple weeks thinking about these. So I think we‘ve had a pretty full discussion, and I‘m comfortable with your record.”
The trial ended two days later on Wednesday. That morning, the trial court shared a “new version” of the instructions with the parties. Plaintiffs objected to the new version of the informed consent instruction because the court “ha[d] taken out the direct instruction that Oregon Medical Group had the obligation to obtain her informed consent.” The court acknowledged that it had taken out “the first paragraph [of the instruction on informed consent] that I had had before” and noted plaintiffs’ objection.
Later that day, the court instructed the jury. In its instructions, the court told the jury that plaintiffs had made five specific allegations of negligence and then repeated to the jury, essentially verbatim, the five specifications of negligence quoted above. The court described what plaintiffs had to prove to recover on their negligence claim, instructed the jury on foreseeability, and also instructed on the standard of care. It then turned to informed consent. The instruction on informed consent divides into two parts. The first part, which we do not quote in full, told the jury what “a physician
“A failure to obtain Mrs. Klutschkowski‘s informed consent may be considered by you in determining whether or not defendant was negligent.
“In order to find defendant negligent in failing to provide informed consent, you must determine that Mrs. Klutschkowski would not have consented to a vaginal delivery had all the risks and alternatives you find to be material been disclosed to her.”
After instructing the jury, the trial court told counsel for both parties that it was “tak[ing] as given all the exceptions that you *** have already made” and asked whether counsel “wish[ed] to make any other exceptions?” In response to that question, defense counsel identified one other exception that he did not think he previously had mentioned. The court noted the exception, and the parties gave their closing arguments to the jury.
The jury returned a general verdict finding that defendant was “negligent in one or more ways alleged by plaintiffs” and, as noted, awarded plaintiffs $557,881.11 in economic damages and $1,375,000 in noneconomic damages. Defendant appealed, assigning error to the trial court‘s rulings denying its motion for a directed verdict on plaintiffs’ informed consent claim and overruling its objection to instructing the jury on informed consent. On appeal, defendant argued that both rulings were incorrect for the same reason-the informed consent statute has no application to a vaginal delivery.
Relying on Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 173-74, 61 P3d 928 (2003), the Court of Appeals held that defendant had not shown prejudice from any error in denying its directed verdict motion. Klutschkowski, 245 Or App at 538-39. The Court of Appeals started from the proposition that plaintiffs’ informed consent claim was effectively a sixth specification of negligence. Id. Given the jury‘s general verdict, the court reasoned that the jury could have found defendant negligent based on one or more of the first five specifications of negligence, which defendant had not challenged, rather than on the informed consent claim.
The Court of Appeals then turned to defendant‘s objection to the instruction on informed consent. It observed that
The court reasoned that
The Court of Appeals identified an additional reason for not reaching the merits of defendant‘s objection. It explained that, in the trial court, defendant‘s objection to instructing the jury on informed consent had turned on whether ”the particular facts of this case required [defendant] to inform [mother] about [the] risks of and alternatives to delivering Braedon vaginally.” Id. (emphasis in original). Given that view of defendant‘s trial position, the Court of Appeals concluded that defendant‘s argument on appeal-“that no instruction on informed consent should have been given because, as a matter of law, informed consent was inapposite-was unpreserved for appellate review.” Id. at 543-44 (emphasis in original).
The Court of Appeals stated that, in light of the trial court‘s colloquy with defense counsel, “the [trial] court understood that whether informed consent was required in this case was a jury question-an understanding with which [defendant‘s] counsel agreed.” 245 Or App at 534. The Court of Appeals based its understanding of defendant‘s trial position on the colloquy quoted above. See id. at 534 n 9 (quoting that colloquy as the basis for the court‘s statement). In that colloquy, the trial court asked defense counsel:
“If you take vaginal delivery as a default position, but [do] not automatically assume that therefore there‘s no informed consent required, nor automatically assume that [informed consent] must be required, then is the determination of the duty not the jury‘s?”
Defense counsel replied, “It‘s the jury‘s. It‘s the jury‘s determination.”
The trial court‘s question asked defense counsel to “not automatically assume that *** there‘s no informed consent required.” The question thus assumed away defendant‘s position that informed consent is never required for vaginal deliveries. Defense counsel‘s answer was responsive to the question the trial court put to him, but it did not signal that defense counsel was somehow abandoning the position that defendant consistently had taken throughout the trial. Were there any doubt about the matter, immediately after defense counsel stated, “It‘s the jury‘s determination,” the trial court asked, “So, if that‘s correct, then does this [instruction on informed consent] belong in [the jury instructions] or not? Because that‘s my position [that
Having concluded that defendant preserved its objection, we turn to the question whether defendant‘s exception after the trial court gave its instructions complied with
This court has explained that the purpose of
Defendant consistently and repeatedly took the position that, as a matter of law, a vaginal delivery is not a “procedure or treatment” that requires consent within the meaning of the informed consent statute. When the trial court stated that it was “tak[ing] as given all the exceptions that you *** have already made,” that statement was sufficient to incorporate by reference defendant‘s objection to instructing the jury on informed consent. In light of the trial court‘s earlier statement that it would take the parties’ objections as exceptions, defendant did not need to do anything more to put the court on notice of its continued position that any instruction on informed consent was error. See Delaney, 297 Or at 18 (stating the purpose for taking exceptions).
Turning to the merits of defendant‘s objection, we note that defendant did not object at trial to the informed consent instruction on the ground that it inaccurately stated the law. Rather, defendant objected to the instruction for the same reason that it had moved for a directed verdict. In defendant‘s view, informed consent has no application to a vaginal delivery, and any claim based on informed consent should not be submitted to the jury. Similarly, in its brief in the Court of Appeals, defendant equated its motion for a directed verdict and its objection to the instruction on informed consent. In defendant‘s view, the trial court‘s rulings on its directed verdict motion and its objection suffered from the same infirmity: both put before the jury a theory of liability that should never have been submitted to it.
In this posture, we think that the same answer applies to both rulings. Under Shoup, even if the trial court erred in submitting that theory of liability to the jury, defendant failed to show that doing so prejudiced it. As the Court of Appeals reasoned, the trial court instructed the jury on five specifications of negligence to which defendant raised no objection. It also instructed the jury on what the Court of Appeals characterized as a sixth specification of negligence. Without a special verdict identifying which specification or specifications gave rise to the jury‘s finding of negligence,
Our decision in Wallach v. Allstate Ins. Co., 344 Or 314, 180 P3d 19 (2008), is not to the contrary. In that case, the trial court incorrectly instructed the jury on how to allocate damages among successive tortfeasors; that is, the instruction gave the jury the wrong legal rule to decide an issue that everyone agreed was properly before the jury. See Id. at 320-21. As noted, defendant has not argued that the instruction on informed consent incorrectly stated the law. Rather, defendant‘s objection to instructing the jury on informed consent was the functional equivalent of its motion for a directed verdict on that claim. Both sought to take the issue away from the jury. On review, defendant does not dispute that the Court of Appeals correctly held that, under Shoup, it failed to prove that any error in denying its directed verdict motion prejudiced it. The same conclusion applies equally to its objection to instructing the jury on informed consent.
B
We turn to defendant‘s remaining claim of instructional error. Before trial, plaintiffs dismissed their claims against all defendants except the Medical Group. In explaining the acts for which the Medical Group could be held liable, the trial court instructed the jury:
“In this case, Oregon Medical Group is the defendant. A corporation can act only through its agents or employees. Any action by the agent or employee of the corporation is the act of that corporation. I instruct you that Dr. McCarthy and Dr. Monji were the agents and employees of Oregon Medical Group.”
Before the trial court, defendant argued that the court‘s proposed instruction was accurate but incomplete. Defendant observed that there was evidence that Dr. Powell was also an employee of the Medical Group, and it reasoned that the trial court‘s instructions permitted the jury to find the Medical Group liable for any negligence on Powell‘s part, even though the statute of ultimate repose barred any claim
“There are no allegations of negligence against either Dr. Powell or Sacred Heart Hospital, and plaintiffs are not claiming either Dr. Powell or Sacred Heart Hospital violated the applicable standard of care in any way.”6
After an extensive colloquy on Wednesday morning in which defendant repeatedly stated its position that the trial court‘s proposed instruction was incomplete, the trial court declined to supplement its instruction with defendant‘s requested instruction.
On appeal, defendant assigned error to the trial court‘s ruling declining to give its requested instruction; defendant argued that the ruling constituted reversible error because it “created an erroneous impression of the law in the minds of the members of the jury[.]” See Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998). Plaintiffs responded that defendant‘s requested instruction was not necessary to explain a material issue and that the instructions the trial court gave explained fully the specific allegations of negligence that plaintiffs were required to prove. The Court of Appeals affirmed the trial court‘s ruling without discussion. Klutschkowski, 245 Or App at 537.
On review, defendant renews its argument that the trial court erred in failing to give its requested instruction. To the extent that the Court of Appeals declined to review defendant‘s assignment of error because defendant had not properly excepted to the trial court‘s failure to give its requested instruction, the Court of Appeals erred for the reasons stated above. The colloquy between the trial court and defense counsel after the trial court instructed the jury was sufficient to incorporate by reference defendant‘s earlier objection. We accordingly turn to the merits of defendant‘s objection.
Plaintiffs argue, however, that the specifications of negligence that the trial court read to the jury as part of its instructions effectively limited the jury to finding defendant negligent based on the actions of McCarthy and Monji. We agree. Those specifications alleged that defendant was negligent in its conduct during mother‘s pregnancy with Braedon, not in its conduct during her earlier pregnancies.7 In Hernandez, we explained that a trial court‘s refusal to give a party‘s requested instruction is not reversible error “if the substance of the requested instruction, even if correct, was covered fully by other jury instructions given by the trial court.” Id. at 106. Read as a whole, the instructions that the trial court gave fully conveyed the substance of the requested instruction; put differently, we cannot say that the trial court‘s instructions, read as a whole, “created an erroneous impression of law in the minds of the members of the jury[.]” See id.
III
Having addressed the instructional issues raised in defendant‘s cross-petition for review, we turn to the constitutional issue raised in plaintiffs’ petition for review. After the jury returned its verdict, defendant moved to cap the
Before the trial court, the parties focused on a Court of Appeals decision, Christiansen v. Providence Health System, 210 Or App 290, 202, 150 P3d 50 (2006), aff‘d on other grounds, 344 Or 445, 184 P3d 1121 (2008), which had held that, when Oregon adopted its constitution in 1857, the common law did not recognize an infant‘s right to recover for prenatal injuries. Defendant took the position that, under Christiansen, all injuries that occur before an infant emerges completely from his or her mother‘s body are prenatal. Plaintiffs took the position that the phrase “prenatal injuries” means injuries that occur while the child is in the mother‘s womb but does not include injuries that occur while the child is in the birth canal. After considering the parties’ arguments and the evidence presented at trial, the trial
On appeal, the Court of Appeals interpreted its decision in Christiansen as holding that “a claim for prenatal injuries-including those that occur during birth-did not exist at the time that the Oregon Constitution was adopted.” Klutschkowski, 245 Or App at 546. Because Braedon‘s injuries had occurred during birth, the Court of Appeals held that, under Smothers, Hughes, and Christiansen, plaintiffs’ constitutional challenges to capping the jury‘s award of noneconomic damages necessarily failed. Id. at 546-47.10 The Court of Appeals accordingly reversed the trial court‘s judgment to the extent it included all the noneconomic damages the jury had awarded.
In this case, neither party has asked us to reconsider our decisions under
To put that question in context, it is helpful to recount both the nature of plaintiffs’ claim for negligence and also the facts that bear on when the injury to Braedon occurred. Essentially, plaintiffs’ third amended complaint alleged that, at various points during mother‘s pregnancy, defendant negligently failed to inform her that the baby could experience a shoulder dystocia and a brachial plexus injury during a vaginal delivery and that she could choose a C-section instead. Although the negligent omissions that
Moreover, the trial court reasonably could have found that the injury to Braedon occurred, to use Dr. Monji‘s words, after Braedon‘s head had been delivered.12 On that issue, one doctor testified, to a reasonable medical probability, that a shoulder dystocia had occurred when Monji delivered Braedon. Other doctors testified that, when a shoulder dystocia occurs (when the baby‘s anterior shoulder gets stuck behind the mother‘s pubic bone), the baby‘s head typically will have emerged from the mother‘s body. Father testified that his observations in the delivery room were consistent with Monji‘s deposition testimony—namely, that she employed a McRoberts maneuver “only after the delivery of Braedon‘s head.” In a related vein, father told mother that, after Braedon‘s head had emerged, Monji put her hands around Braedon‘s head and “was pulling very forcibly, and seem[ed] like she was stretching Braedon‘s neck.”13 Given that evidence, the trial court reasonably could have found that a shoulder dystocia occurred, with a resulting brachial plexus injury, after the delivery of Braedon‘s head.
Defendant argues, however, that an exception to those general principles existed in 1857. Defendant relies on two cases, one from Massachusetts in 1884 and another from Illinois in 1900, for the proposition that, in 1857, an infant had no cause of action for prenatal injuries. See Dietrich v. Northampton, 138 Mass 14 (1884); Allaire v. St. Luke‘s Hosp., 184 Ill 359, 56 NE 638 (1900). We turn to those cases to determine the extent to which they carve out an exception from the general principle that negligence and medical malpractice were recognized causes of action in 1857.
In Dietrich, the mother was four to five months pregnant when she slipped on a defect in a town highway and fell. 138 Mass at 14. The fall brought on a miscarriage, and the infant survived its premature birth only briefly. Id. at 15. When the administrator of the child‘s estate brought a claim against the town for negligently maintaining the highway, the court dismissed the claim on the ground that the common law did not recognize a civil cause of action for injuries “received by [a child] while in its mother‘s womb.” Id.
The facts in Allaire were essentially the same as those in Dietrich. The mother in Allaire suffered an injury during the course of her pregnancy as the result of an accident, and the physical injury to the mother had a consequential effect on the health of the child. See Allaire, 184 Ill at 361-62.16 As the court phrased the issue in Allaire, the question was whether the child, “at the time of the alleged injury, in contemplation of the common law, [had] such distinct and independent existence that he may maintain the action, or was he, in the view of the common law, a part of his mother.” Id. at 365. The court stated that, if the injury occurred while the child was part of the mother, the child could not
In considering that issue, the court quoted the passage from Dietrich that explained that, because the unborn child was part of the mother, “any damage to [the child] which was not too remote to be recovered for at all was recoverable by her.” See id. at 366 (quoting Dietrich, 138 Mass at 17). The court also cited a case from the Irish courts, Walker v. Great Northern Railway Co., 28 LR Ir 69 (1890), which had held that a child had no cause of action for a railroad‘s negligence because the railroad owed a duty to the mother but not to her unborn child. See Allaire, 184 Ill at 366.17 Having noted the rationales in both Dietrich and Walker, the court in Allaire took a more categorical approach to the issue. It asked whether the child was “part of the mother” when the injury occurred, and it answered that question by positing “[t]hat a child before birth is, in fact, a part of the mother and is only severed from her at birth.” Id. at 368. Because the child in Allaire had been part of the mother at the time of the injury, the court concluded that the child had no cause of action against the defendant.
The question in both Dietrich and Allaire was whether a child could bring a cause of action for a negligently inflicted injury to its mother during the course of her pregnancy that resulted in a consequential injury to what was, at the time of the injury, a fetus.18 Neither case presented the issue that this case does; that is, neither case addressed whether a defendant‘s negligence that directly causes an
Additionally, the considerations that underlay the categorization that Dietrich invoked and on which Allaire placed greater reliance—that the child was “part of the mother” at the time of the injury—are absent here. This is not a case in which the harm that Braedon sustained as a result of defendant‘s negligence was too remote to be actionable, as the court concluded the child‘s injury was in Dietrich. Rather, as explained above, the direct and foreseeable consequence of defendant‘s earlier failure to advise mother of the risks of a vaginal delivery was that Braedon‘s shoulder would become stuck behind his mother‘s pubic bone during delivery and that he would suffer a brachial plexus injury as a result. Similarly, this is not a case in which, as in Walker, the defendant owed no duty to Braedon. It would be difficult to say that the obstetrician, who at the time of Braedon‘s injury held his head in the palms of her hands, owed no duty of care to him. See Mead, 352 Or at 277 (describing when a physician ordinarily owes a duty of care to a patient). Finally, defendant‘s negligence resulted in a physical injury only to Braedon, and not to his mother. Without a physical injury to the mother, it is difficult to bring this case within the reasoning of Allaire, which appeared to view the fact that the “injury was to [the mother] and not to [the child]” as synonymous with its conclusion that the child was “part of the mother” when the injury occurred. See Allaire, 184 Ill at 365.
To the extent that Dietrich and Allaire carve out an exception from the general principle that actions for negligence
One final point deserves mention. The Oregon Court of Appeals held in Christiansen that, in 1857, the common law did not recognize an action for injuries an infant sustained during delivery. See 210 Or App at 292, 302. Defendant commends Christiansen‘s holding to us and quotes a passage from that decision in support of its position in this case. The difficulty with defendant‘s reliance on that passage is that the sources Christiansen cited in that passage do not do support the conclusion it reached.
The passage from Christiansen on which defendant relies cites two sources. See 210 Or App at 298. The first is Allaire, which we have already discussed. Id. The second is a 1971 annotation in the American Law Reports. Specifically, Christiansen cited two sections of that annotation for the proposition that an injury that occurs during delivery was not actionable in 1857. See id. (citing Roland F. Chase, Annotation, Liability for Prenatal Injuries, 40 ALR 3d 1222 § 1[a] n 5, § 2[a] (1971)). The first section that Christiansen cited merely defines the scope of the annotation, which surveys cases from 1884 to 1971. See 40 ALR 3d 1222 § 1[a] n 5. That section does not purport to describe the injuries that were actionable in the nineteenth century. The second section of the annotation that Christiansen cited discusses briefly the “[h]istorical development of law of prenatal injuries.” Id. § 2[a]. That section of the annotation describes the holdings in Dietrich and Allaire, but does not say that those decisions apply to injuries that a child sustains independently during delivery. In our view, the passage on which defendant relies provides no persuasive support for the conclusion that Christiansen reached and that defendant urges us to adopt.
We assume, for the purposes of deciding this case, that Dietrich and Allaire carve out an exception to the
We acknowledge, as we must, that neither party has cited any nineteenth-century case that addresses the specific question that this case presents, nor have we found any. That is, we are not aware of any nineteenth-century case that discusses one way or the other whether a child could maintain a cause of action for medical malpractice for independent physical injuries that the child sustains during delivery as a direct consequence of the defendant‘s acts or omissions. Whatever the reason for that absence of authority, our precedents require us to decide whether a cause of action for the injuries Braedon sustained was recognized in 1857. Faced with that question, we follow the general principle that actions for medical malpractice and negligence were recognized in 1857 unless we are persuaded that an action comes within an exception to that rule. For the reasons explained above, we are not persuaded that the injuries that Braedon sustained come within the exception that defendant has identified.
Having decided that question, we turn to our cases under
”
Article I, section 17 , guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and in cases of like nature. In any such case, the trial of all issues of fact must be by jury. The determination of damages in a personal injury case is a question of fact. *** The legislature may not interfere with the full effect of a jury‘s assessment of noneconomic damages, at least as to civil cases in which the right to jury trial was customary in 1857[.]”
Because an action for medical malpractice is one for which “the right to jury trial was customary in 1857,”
The decision of the Court of Appeals is reversed in part and affirmed in part. The judgment of the circuit court is affirmed.
The court‘s decision in this case turns on whether the common law in 1857 would have recognized plaintiff‘s claim. I do not quarrel with that. The sort of imaginative reconstruction of nineteenth-century case law in which the court engages is precisely what its precedents require. My quarrel is with those precedents.
I am skeptical of those precedents in two respects. First, at a more general level, I contest the notion that this state‘s constitution today means no more than what it meant in 1857. That proposition is at the core of the controlling decisions in this case—Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), and Hughes v. PeaceHealth, 344 Or 142, 178 P3d 225 (2008), in particular. In my view, the sort of hyper-originalism that those decisions both require and purport to reflect is untenable. As I argued in my concurring opinion in State v. Hemenway, 353 Or 129, 154, 295 P3d 617 (2013) (Landau, J., concurring), vac‘d by State v. Hemenway, 353 Or 498, 302 P3d 413 (2013), there is little evidence that the framers of the Oregon Constitution intended that their intentions or understandings would be forever controlling. Even assuming that the framers’ intentions or understandings are controlling, the fact remains that those intentions or understandings are often unknowable or are unknown to us. And even in those cases in which they are known, it is often impossible to apply those intentions or understandings to modern circumstances without transforming them in ways that would have been utterly foreign to the framers.
Second, I have my doubts about the controlling decisions themselves. That is to say, even assuming for the sake of argument that the Oregon Constitution means only what it was intended to mean in 1857, I question whether the framers intended the interpretations that this court adopted in Smothers and Hughes.
I begin with Smothers. In that case, this court concluded that the exclusive remedy provision of the state workers’ compensation statute violated the remedy clause of
The court acknowledged that direct evidence of what the framers of the Oregon Constitution intended “admittedly is sketchy.” 332 Or at 114. In fact, the court found no discussion of
Based on that historical analysis, the court concluded that, to determine whether a statute violates the remedy clause guarantee entails a two-part inquiry: To begin with, it must be determined, “when the drafters wrote the Oregon Constitution in 1857, did the common law of Oregon recognize a cause of action for the alleged injury?” Id. at 124. If the answer to that question is no, then the
Applying that test to the exclusive remedy statute at issue, the court in Smothers answered the first question in the affirmative—that is, the court concluded that, in 1857, the common law recognized a claim by an employee against an employer for negligent injury during employment. And it answered the second question in the negative—that is, the substitution of workers’ compensation for common-law negligence claims was constitutionally inadequate because the more rigorous causation standard that applies to workers’ compensation claims left some claims that would have been compensable at common law beyond remedy. Id. at 133-34.
The court‘s historical analysis is the focus of my concern. It appears to me that, in a number of important respects, the court‘s analysis in Smothers is difficult to reconcile with the historical record.
In brief, the court in Smothers traced the origins of the remedy clause to Magna Carta, as explained by Coke and Blackstone; as informed by the common-law maxim ubi jus, ibi remedium (where there is a right, there must be a remedy); and as taken up by nineteenth-century constitution framers who were hostile to legislative authority. 332 Or at 94-112. As far as I can tell, pretty much everyone agrees with the initial proposition that state remedy clauses have their genesis in section 29 of the 1225 version of Magna Carta, which provides that
“[n]o freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.”
So far, so good.
The court gets into trouble, however, in its reading of Coke‘s commentary on the final sentence of Chapter 29.
What Coke was writing about was royal—that is, the king‘s—interference with the judiciary. David Schuman, The Right to a Remedy, 65 Temple L Rev 1197, 1200 (1992) (“At the time of Magna Carta, the evil was corrupt courts.“). The immediate context within which Coke wrote his commentary bears out the point. King James I, as absolute monarch, had asserted the authority to appoint or remove judges at his pleasure and to influence their decisions at will. See generally William S. Holdsworth, 5 A History of English Law 423-56 (1924) (on the conflict between the king and Coke concerning crown control of the courts). Coke asserted that the common law took precedence over the authority of the king.2 In that context, he wrote in the Second Institutes that
“every subject of this realme, for injury done to him in bonis, terris vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.”
Edward Coke, The Second Part of the Institutes of the Laws of England 55 (1797). The quote responds to the abuses of the king, including the sale of justice, corrupt appointments, and interference with judicial decisions. See generally Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or L Rev 1279, 1288 (1995) (“Royal interference with the common-law courts incited Sir Edward Coke‘s fight with the Crown and inspired his reinterpretation of Magna Carta in his Second Institute.“). It was about who was entitled to justice from the courts—everyone, regardless of class or station—and how remedies are to be administered under law—“freely without sale, fully without any deniall, and speedily without delay.” Nothing in the historical context of Coke‘s Second Institutes suggests that his point was that the courts were the guardians of a substantive right to remedy against intrusions by Parliament. To the contrary, corrupt courts were the problem for Coke. Smothers, in suggesting that Coke was about protecting against legislative interference with common-law remedies, turns Coke on his head, transforming his discussion about royal corruption of courts into a declaration of rights as against parliamentary interference.
The court also runs into trouble in its appeal to Blackstone‘s Commentaries. According to the court in Smothers,
“Blackstone explained that the common law viewed Englishmen as having both absolute and relative rights. *** Absolute rights are founded on immutable laws of nature and reason, and usually are called liberties.
“*****
“Blackstone echoed Coke in stating that it would be ‘in vain’ for the law to recognize rights, if it were not for the remedial part of the law that provides the methods for
restoring those rights when they wrongfully are withheld or invaded.”
332 Or at 98-99 (citations omitted).
Once again, the court appears to have extracted quotations from their context and summarized them to stand for something that would have been foreign to their source. Certainly, Blackstone spoke of absolute rights. The entire first chapter of Book I of his Commentaries concerns “the absolute rights of individuals.” William Blackstone, 1 Commentaries on the Laws of England *117. But Blackstone viewed absolute rights as such only in a state of nature. Id. at *119 (“By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature.“). He did not regard them as absolute in the sense of being immune from change or limitation by the legislature. See Albert W. Alschuler, Rediscovering Blackstone, 145 U Pa L Rev 1, 28 (1996) (Blackstone did not “view rights within political communities as ‘absolute’ in the sense that they were unqualified or unrestricted.“); Bradley J. Nicholson, A Sense of the Oregon Constitution 209 (2011) (http://www.asenseoftheoregonconstitution.com) (“[D]espite Blackstone‘s characterization of particular rights as ‘absolute,’ they always were subject to legislative alteration.“).
To the contrary, Blackstone explicitly stated that even so-called “absolute rights” were subject to regulation by Parliament in the public interest. See, e.g., Robert P. Burns, Blackstone‘s Theory of the “Absolute” Rights of Property, 54 U Cinn L Rev 67, 73 (1985) (In Blackstone‘s view, “absolute rights may be curtailed by necessary sacrifices, imposed by positive law, for the blessings of civilized society.“); Jeffrey D. Jackson, Blackstone‘s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 Okla L Rev 167, 208 (2010) (Absolute rights, to Blackstone, “are not ‘absolute’ in all applications. Rather, they are bound by ‘the laws of the land,’ that is, by the valid laws enacted to protect and regulate society.“). In Blackstone‘s view, we relinquish some of our absolute rights when we become members of a political community. Blackstone, 1 Commentaries at *121 (“But every man, when he enters into
To say then, as Smothers does, that Blackstone asserted a common-law right to a remedy superior to legislative authority is quite at odds with what Blackstone actually said. See Thomas R. Phillips, The Constitutional Right to a Remedy, 78 NYU L Rev 1309, 1323 (2003) (“Blackstone clearly saw the remedies guarantee only as a check on royal and other ‘private’ abuses of power, not parliamentary excess.“); Nicholson, A Sense of the Oregon Constitution at 208 (“[C]onsistent with the scope of the 18th-century doctrine of parliamentary supremacy, *** Blackstone apparently believed that parliament was more trustworthy than the judiciary.“).
In a related vein, the court runs into further problems in invoking the hoary ubi jus maxim.3 According to the Smothers court, “the purpose of the remedy clause is to make the common-law maxim that there is no wrong without a remedy a ‘fixed and permanent rule in this state.‘” 332 Or at 115. As authority for that proposition, the court cited its own decision in Platt v. Newberg et al., 104 Or 148, 153, 205 P 296 (1922), which, in turn, cited the Corpus Juris Secundum, which simply stated that state remedy clauses trace to Magna Carta. In fact, I am aware of no support for
It appears that the maxim had an entirely different purpose. It was cited by early common-law courts as authority for courts to create remedies where statutes proved inadequate. See generally Jonathan M. Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers LJ 1005, 1010 (2001) (“[W]hatever its source, the Maxim was historically applied to effectuate legislative policy, not to thwart it.” (Emphasis in original.)). Thus, if statutes did not provide a remedy for a given wrong, courts regarded themselves as empowered to supply the needed remedy. That, at least, is how mid-nineteenth-century cases viewed the maxim. See, e.g., Stearns v. Atlantic & St LR Co, 46 Me 95, 102 (1858) (“But the absence of all statutory remedy compels the plaintiff to rely upon common law authority for bringing an ‘action upon the case.‘“). It was cited as authority for courts to add to the legislature‘s exercise of its lawmaking authority. I can find no authority for the proposition that the maxim operated to prevent legislatures from exercising their authority to modify or eliminate common-law remedies, which is another matter entirely.
The Smothers court encounters additional trouble in relying on the framers’ “mistrust of legislative power” as a basis for its reading of the remedy clause of
I have searched the historical record in vain for any suggestion that the abuses of mid-nineteenth-century legislatures also included the enactment of laws that encroached on common-law tort remedies. Smothers certainly identified none. That such is the case, again, is understandable when the historical context is more fully taken into account. The mid-nineteenth century, after all, was no friend to those seeking recovery for injury. The law of negligence was in its infancy. Lawrence Friedman, A History of American Law 222 (3d ed 2005) (in the nineteenth century, “[n]egligence was the merest dot on the law“); Morton J. Horowitz, The Transformation of American Law 1870-1960 85 (1977) (“One is surprised to learn how really late it was in the nineteenth
In that context, I have to wonder where the idea originated that the framers wanted judges to act as restraints on legislative abrogation of common-law remedies. The robust common-law remedies with which we are so familiar today barely existed at the time, and it was the judges who were adopting constraints on them.
The problems with Smothers that I have described do not appear to be mere disagreements about subtle issues of historical interpretation that are of idle academic interest. Recall that the court in Smothers acknowledged an absence of direct evidence of what the Oregon framers intended the remedy clause to mean. The linchpin of its decision was its construction of a settled understanding of what remedy clauses meant to mid-nineteenth-century framers. The court then read the silence of the record as to the particular intentions of the Oregon framers as, in effect, acquiescence in that settled understanding. 332 Or at 114 (“[W]e find no indication that the drafters sought to depart from the historical purpose of remedy clauses.“).
The problem is that the court did not make its case for a settled understanding of state remedy clauses. The matter is, at best, debatable. Indeed, what scholarship on
Aside from the fact that Smothers appears to rest on a shaky historical foundation, the decision does not appear to be working very well on its own terms, as our recent, sharply divided cases make clear. See, e.g., Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013). This court, in fact, appears to
The difficulty is that Smothers explicitly holds that the scope of the remedy clause is limited to protecting common-law rights that vested in 1857. That is problematic in at least several ways.
First, if Smothers constitutionally protects claims that existed in 1857, it would seem to follow that its protection extends to some that can only be regarded as quaint artifacts of a time long gone by. For example, if Smothers means what it says, I do not understand how the legislature had the constitutional authority to eliminate a husband‘s common-law liability for the torts of his wife or such claims as the tort of alienation of affection. It should not be forgotten that, at the time of the adoption of the Oregon Constitution, women had limited legal rights, and some persons of color had none at all.
Second, if the remedy clause protects only those claims that “vested” in 1857, that turns out to be not much of a guarantee, given the state of the common law at that time. For example, as this court noted in Howell, at the time of the adoption of the Oregon Constitution, a plaintiff could not state a claim for negligence without affirmatively establishing a complete absence of contributory negligence. 353 Or at 382-85. The doctrine was not treated as a defense in this state until the mid-1880s. See Grant v. Baker, 12 Or 329, 332-33, 7 P 318 (1885) (first decision to treat contributory negligence as an affirmative defense). It would seem to follow that the remedy clause affords no relief to any twenty-first century plaintiff who was at fault in the slightest way.
Third, there is the unavoidable problem of determining the proper level of generality with which to describe
In that regard, it is worth noting that it is plaintiff in this case who suggests that we should depart from the rigid historical focus of Smothers and broaden the guarantee beyond those rights that existed in 1857. That simply will not work, however, at least not without completely rethinking the interpretation of the remedy clause. Smothers cannot just be tweaked as plaintiff suggests. Its very rationale is that certain rights vested at a point in time. 332 Or at 116 (under the remedy clause, ““[v]ested rights are placed under constitutional protection, and cannot be destroyed by legislation.” (quoting Templeton v. Linn County, 22 Or 313, 318, 29 P 795 (1892))). It is explicitly historical.9
My own view is that it is unlikely that the framers intended the remedy clause to serve as a limitation on legislative authority, certainly not one that essentially freezes the guarantee to preserve mid-nineteenth-century tort law. See generally Brewer v. Dept. of Fish and Wildlife, 167 Or App 173, 191-98, 2 P3d 418 (2000) (Landau, J., concurring). I am inclined to agree with what appears to be the majority of other state courts that have addressed the issue, which conclude that state remedy clauses are addressed to the courts, not the legislature, and that—consistently with mid-nineteenth-century antipathy to favoritism—its target is the accessibility of the courts by all, without discrimination.10
But I make no claim that that view reflects anything close to settled law or history. Moreover, that view presupposes that the framers’ intentions are controlling in the first place—a position that, as I have said, I contest. At this point, I am less invested in a particular interpretation of the clause than I am in having the matter served up for proper argument and reexamination.
I have similar reservations about Hughes, especially with respect to its incorporation of Smothers-type analysis into the interpretation and application of the right to a jury trial guaranteed by
In fact, our more recent case law rejects just such a reading of
Obviously, there is some tension between what this court said and did in Hughes and what we said and did in Foster.
It strikes me that there are two possible ways to resolve that tension. First, we could conclude that Foster—which did not expressly address the matter—implicitly overruled Hughes. Second, we could conclude that Foster did not need to overrule Hughes, because Hughes and its Smothers-like analysis apply to only a particular aspect of the right to a jury trial, namely, a right to the benefit of the jury‘s decision itself without any statutory limitations, and does not apply to the broader question whether there is a right to have the jury make the decision in the first place.
In my own view, only the former possibility is tenable. I do not understand how the right to a jury trial can be parsed out into subsidiary rights, one of which requires Smothers-like historical analysis and the other that does not. Either there is a right to a jury trial, or there is not. Plain and simple.
It could be inferred that the court implicitly adopts the second of the two possibilities in this case, given that it has engaged in the historical analysis that Smothers and Hughes require in deciding the matter under
I do not argue that we should address all of these issues in this case. Although I would not go so far as to say that we are incapable of reconsidering earlier decisions without a request from one or more parties, I nevertheless recognize that questions such as the ones that I have posed are difficult and complex and that the court, in attempting to address them, would benefit from the sort of research and argument that the adversarial process provides. Careful and vigorous advocacy may reveal that I am mistaken in my critique of Smothers and Hughes. Or not. Either way, before we apply those decisions in future cases, we should invite such advocacy to address the issues that I have raised.
Notes
The closest thing to direct evidence about the intended meaning of Oregon‘s remedy clause, the court explained, was the rewording of the clause—without explanation—from the Indiana provision on which it was based. 332 Or at 113-14.
“All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”
A committee on the Bill of Rights apparently reworked the phrasing so that
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
The court found significant that the revised version “expressed in a separate, independent clause the guarantee of remedy by due course of law.” 332 Or at 114. Of course, the remedy guarantee was expressed in a separate, independent clause in the original Indiana version, as well. The framers of the Oregon version simply moved the independent clause of the Indiana version to a different place in the sentence.
Courts held that risks resulting from a dangerous place of employment were incident to employment and addressed in the worker‘s rate of pay. An employee could sue an employer only for the employer‘s personal misconduct, which, given the realities of nineteenth-century industrial organization, made that possibility essentially meaningless. See generally Lawrence M. Friedman and Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 Colum L Rev 50, 53 (1967) (“An employee retained the right to sue the employer for injuries, provided they were caused by the employer‘s personal misconduct. But the factory system and corporate ownership of industry made this right virtually meaningless.“).
The law was famously described by Chief Justice Shaw in Farwell v. Boston & W. R. Corp., 45 Mass 49, 59-60 (Mass 1842), in which he explained that “[t]he general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly.” See also Comment, The Creation of a Common Law Rule: The Fellow Servant Rule, 1837-1860, 132 U Pa L Rev 579, 590-95 (1984) (describing Farwell and its rapid adoption by most courts).
Some courts adopted exceptions to the rules barring negligence claims against employers. For example, courts created an exception for employers who supplied faulty tools, see, e.g., Flike v. Boston & A.R. Co., 16 Am Negl Cas 765 (NY 1873) (“The master is liable if his own negligence or want of care produces the injury, and this may be manifested by *** furnishing improper or unsafe machinery, implements, facilities or materials for the use of the servant.“), and another, known as the “vice-principal exception,” that applied to certain supervisory employees whose responsibilities were such that the courts regarded them as, in effect, the employee, see, e.g., Berea Stone Co. v. Kraft, 31 Ohio St 287, 291-92 (1877) (The fellow servant rule, “has no application where the servant by whose negligent conduct or act the injury is inflicted, sustains the relation of superior in authority to the one receiving the injury.“). But such exceptions did not arise until later, in most cases, years after the adoption of the Oregon Constitution. See generally Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century America 122-124 (1997) (describing adoption of various exceptions to fellow-servant rule from 1860s to 1880s).
For that reason, it is especially difficult to understand the court‘s application of its new interpretation of the remedy guarantee to the question whether the common law in 1857 recognized negligence claims by employees against employers. The court in Smothers declared that, “in 1857, the common law of Oregon would have recognized that a worker had a cause of action for negligence against his employer for failing to provide a safe workplace.” 332 Or at 131. Yet the court found not a single antebellum case to support that proposition.
That is hardly surprising, given the state of the law at the time. As I mentioned, it was all but impossible to recover against an employer for injuries negligently inflicted in the workplace. How, then, could Smothers conclude that, “in 1857, the common law of Oregon would have recognized that a worker had a cause of action for negligence against his employer for failing to provide a safe workplace“? 332 Or at 131. In brief, the court cited several cases from the 1870s and 1880s that recognized exceptions to the rule of nonliability, without acknowledging the rule itself.
For example, the court relied heavily on an 1880 United States Supreme Court decision, Hough v. Texas and Pacific R.R. Co, 100 US 213, 25 L Ed 612 (1879), which it said recognized a “firmly established” rule that employers were obligated by law to provide a safe workplace. 332 Or at 129-30. A careful reading of Hough, however, reveals a different picture. In that case, the United States Supreme Court expressly recognized “the general rule exempting the common master from liability to one servant for injuries caused by the negligence of a fellow-servant in the same employment.” 100 US at 215. The Court quoted extensively from Chief Justice Shaw‘s opinion in Farwell and commented that, “[a]s to the general rule, very little conflict of opinion is to be found in the adjudged cases.” Id. at 216. Indeed, the Court said, “the general doctrine, as stated by Chief Justice Shaw, is sustained by elementary writers of high authority, and by numerous adjudications of the American and English courts.” Id. The Court then went on to note a recently recognized exception to the general rule, that employers were obliged to “provid[e] the servant with machinery or other instrumentalities adequately safe” for use in the workplace. Id. at 217. This is precisely one of the exceptions that I mentioned above, exceptions that were not adopted until the 1860s and 1870s.
In similar fashion, the court in Smothers quoted Anderson v. Bennett, 16 Or 515, 19 P 765 (1888), as holding that “an employer, and the employer‘s representatives, have a duty ‘to use reasonable care and diligence and [to] make reasonable provision for the servant‘s safety.‘” 332 Or at 131 (quoting Anderson, 16 Or at 532). The court conceded that Anderson was decided more than 30 years after the adoption of the constitution, but it regarded the decision as controlling nonetheless, because “nothing in the court‘s opinion in that case suggested that the holding was novel or that the decision marked a departure from any previous decisions or jurisprudence on the subject.” 332 Or at 131. That appears to be incorrect.
The court in Anderson actually began its analysis by acknowledging the general rule and rationale from Shaw‘s Farwell decision: “The general doctrine that a master is not liable for the injuries caused by the negligence of a fellow-servant
“But in the progress of society since the decision in Farwell v. Railroad Co. such has been the increase in the number and magnitude of the business operations of the country, the great army of servants required to be employed to perform their work, and the necessity of placing over them, and in charge of these vast operations, other servants to direct and control their labor, that there has been wrought in the judicial mind the conviction that the general application of that rule in such cases has often worked manifest injustice and hardship. So that the later current of judicial decision *** indicates a marked departure from that rule, and a disposition to so limit and restrict it as shall make the master answerable for his just share of responsibility to his servant for injuries sustained in his employment.”
16 Or at 522 (emphasis added). In that context, the court then recognized the development of the vice-principal exception to the fellow-servant rule and the obligation of the employer to furnish a safe place of employment. Id. at 528.
Thus, in both cases, it appears that Smothers failed to acknowledge what the authorities it cited actually said about the general rule of nonliability of employers and instead quoted from what those authorities identified as exceptions to that general rule—exceptions that were not widely recognized until after the adoption of the Oregon Constitution.
Blackstone notes:
“[I]t hath been solemnly resolved, that mala praxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient‘s destruction. Thus also, in the civil law, neglect or want of skill in physicians and surgeons[.]”
William Blackstone, 3 Commentaries on the Laws of England 122 (1768).