In a fascinating ruling that discusses Oregon law back to 1857, the Oregon Court of Appeals held that former TV personality Ken Ackerman may keep his $1.4 million dollar medical malpractice judgment. However, the court changed the trial court's ruling on who must pay it.
Mr. Ackerman had back surgery by a doctor employed by Oregon Health & Science University (OHSU) and OHSU Medical Group. The doctor punctured Mr. Ackerman's spinal cord, leaving him in constant pain, and with a loss of fine motor skills in his right hand. Also, he lost most sensitivity to hot and cold on his left side.
Because OHSU is considered a governmental entity, special laws apply that purport to limit its liability $200,000. Whether those laws work to limit liability depends on whether Mr. Ackerman could have brought the lawsuit before our 1857 constitution guaranteed to all of us a "remedy by due course of law." If a law made after 1857 tries to take away our rights, then it is unconstitutional.
Oregon's Court of Appeals said that because Mr. Ackerman could not have sued the State before 1857, and because OHSU is considered like the state, then the limit as against OHSU is okay.
The Court then looked at whether the OHSU Medical Group is like OHSU, and gets the benefit of the limitation. On the record before it, the court found that OHSU Medical Group was, again, an "instrumentality of the state," which could be limited. (One wonders if a different record based upon the activity at issue could lead to a different result.)
The back surgeon, however, was not considered protected under the State's umbrella. The laws that purported to protect him from additional liability were held to be unconstitutional.
Consequently, the Court of Appeals said Mr. Ackerman could collect $200,000 from OHSU, $200,000 from OHSU Medical Group, and $1 million from the back surgeon.
There are many more issues involved in this important case, and defendants will seek review by the Oregon Supreme Court. So, as they say in television, "stay tuned."
Jeff Merrick, Oregon Trial Attorney
503-665-4234
