Oregon Personal Injury Lawyer Blog

How does a brain injury impact the time to sue under Oregon's Statutes of Limitations? Time limits in Oregon are too many to list. In fact, Oregon Attorneys all receive a 406-page red book that lists the different limits. This post highlights a few critical laws controlling when to sue the person who caused an acquired brain injury.

A disabling brain injury extends some (not all) statutes of limitations for up to five years. The extension is found in ORS 12.160, which covers minors and "insane" people. It "tolls" -- or puts on hold -- the running of some statutes of limitations for "so long as the person is insane" but not longer than an additional five years. So how bad must the brain injury be to toll the statute of limitations? The injured person must be unable to comprehend his or her legal rights, according to the 1991 case of Roberts v. Drew.

For example, if a person suffers traumatic brain injury in a car accident, the general statute of limitations is 2 years. If the person is unable to comprehend his legal rights for the rest of his life, then the time limitation to sue is 2 years + 5 years for a total of 7 years.

But that is not the whole story. Claims in Oregon have more than just a statute of limitations, which generally begins to run when someone "discovers" her right to sue. What happens if she discovers her right to sue years later? Can she file her claim 20 years later? That depends on another time limitation called the period of "repose." For many claims, that second time limit is 10 years. But for some, it is shorter. For medical malpractice, it is 5 years from the time the doctor made the mistake.

Generally, a person hurt by medical malpractice in Oregon must sue with 2 years, as with car accident cases. For example, I had a client who suffered anoxic brain injury because of the malpractice of the anesthesiologist. If the brain injury were bad enough to toll the statute of limitations for the rest of his life, his time limit to sue would NOT be 2 + 5 = 7, as with the car accident example. Instead, the 5-year medical malpractice statute of repose would require a lawsuit within five years of the date of the anesthesia (with some exceptions). At most, the acquired brain injury would add three years to the time limit, not five years.

Another example where permanent disability from brain injury might not provide an additional 5 years is claims against government hospitals, school districts, or other public bodies. First, Oregon's Tort Claims Act requires formal written notice of intent to sue, regardless of disability, within months. Second, Oregon's law is unsettled whether disability extends the two-year statute of limitations against governmental bodies.

In conclusion, a person who acquires a brain injury because of the fault of another usually has a right to sue. A disabling brain injury often -- but not always -- extends the time limits for asserting claims. If your family member obtained a brain injury, I know you have a lot to deal with. However, if you want to preserve his or her right to sue, you need to find time to talk with me, or another Oregon attorney, to determine the potential claims and time limitations.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Recently, Oregon's Court of Appeals provided a road map for how a disappointed client may seek attorney fees in a legal malpractice case. The case, Saul Rivera-Martinez v. Tommy Vu and Donald Hooton, applies to claims alleging that an attorney committed legal malpractice on an employment retaliation claim, wage claim, or other claims that provide for attorney fees.

The general rule is simple. On negligence claims, including claims that a lawyer was negligent, a party my not win attorney fees on top of other losses. So, in legal malpractice cases, the former client may not seek attorney fees against the lawyer who was negligent.

But what if the client hired the lawyer to win a case that provided for attorney fees? Certain statutory claims provide attorney fees to the winning party, including employee whistleblower lawsuits and wage claims. Mr. Rivera-Martinez alleged that his employer did not pay him overtime wages, which is against the Oregon and United States law. Both laws allow for attorney fees. Attorney fees in such cases are critical. If, for example, the employer owes only $4,000, then it would not make sense to sue, because it would cost the employee more than $4,000 to take the case through court (unless the employer settles promptly). Unfortunately, the attorneys filed late, after the statute of limitations expired, so Mr. Rivera-Martinez lost his right to sue for wages.

Mr. Rivera-Martinez sued his lawyers for legal malpractice. His new attorney alleged that Mr. R-M should recover both the wages lost plus attorney fees that would have been expended. The case went to arbitration first. The arbitrator believed that attorney fees may be claimed as part of the money losses to the client. (The Court of Appeals assumed this was true without actually deciding the issue.) Nevertheless, the trial court did not award money for attorney fees because it held that the legal malpractice attorney did not ask for attorney fees in the correct way.

There were two possible ways to ask for attorney fees. The first was to offer evidence during a trial or arbitration of what attorney fees and costs would have been if the first lawyers had filed the wage case on time. The second possibility was to ask for attorney fees like we do in a wage case - that is - wait until after the trial and then submit the attorney bills. Mr. R-M's attorneys took the second route and argued that the time they spent proving the wage-claim part of the case was a fair measure of what should be paid.

The arbitrator, the trial judge, and the Court of Appeals all said that to recover the attorney fee part of a wage claim, the client must offer evidence during trial -- in his "case-in-chief" -- of what the attorney fees would likely have been. The post-trial route of submitting actual attorney fee bills may not be used when the attorney fees are part of damages from the legal malpractice.

Yes, this is a bit confusing to nonlawyers. But it makes perfect sense to attorneys.

Jeff Merrick, Oregon Trial Attorney
Legal Malpractice, Personal Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

This post reviews the 2011 Oregon Supreme Court disciplinary actions against Oregon attorneys. Ultimately, the Oregon Supreme Court sets the standard of care for Oregon attorneys. Attorneys who breach the standard of care and hurt their clients may be liable for legal malpractice.

The process starts with the Oregon State Bar, which disciplines attorneys it finds guilty of unethical conduct. Penalties range from a reprimand to disbarment. Attorneys may appeal to the Oregon Supreme Court, which ruled on only six attorney-conduct cases in 2011, finding three lawyers guilty of misconduct. It disbarred another based on conduct in Hawai'i. Also, the court accepted 5 "Form B" offers to resign and rejected one offer, disbarring the attorney, instead. A Form B resignation means that the lawyer is finished forever, with practicing law in Oregon. Some lawyers use Form B resignations instead of fighting disciplinary proceedings.

The court suspended Jason D. Castanza for 60 days. The Oregon State Bar found that Attorney Castanza quit on two clients in a civil action without protecting their interests by (1) allowing them enough time to employ another attorney, (2) asking the court to postpone trial, (3) filing a proper notice of withdrawal, (4) responding to a motion to dismiss, (5) responding to the general judgment and cost bill, or even letting his clients know about the judgment.

The court disbarred Randy R. Richardson, who the Oregon State Bar found had engaged in illegal conduct, failed to provide competent representation and broke conflict-of-interest rules. Attorney Richardson assisted a man obtain real estate from the man's aunt by means of fraud and deception.

The court disbarred Steven B. Johnson after the Hawai'i disbarred him for failing to disclose, during his application for the Hawai'i bar, prior Oregon complaints against him and then not being truthful about it.

The court disbarred John H. Oh, who was accused of 52 violations of the rules of professional conduct involving 12 different clients in immigration matters. Although Mr. Oh appealed the State Bar's recommendation, he never filed a brief with the court. He tried to resign, instead. But the court disbarred him.

By contrast, the Oregon Supreme Court accepted 5 Form B resignations from other attorneys. Here's the rundown of Form B resignations, as reported in the Oregon Bar Bulletin in 2011:

Continue reading "Oregon Supreme Court Disbars 3 Oregon Attorneys in 2011 and accepted 5 Form B resignations. " »

We love buying toys for children. Unfortunately, nearly 150,000 children per year go to the hospital because of toy-related incidents. As an Oregon attorney who practices Pediatric Law, I've come up with my top 6 things to consider when buying toys for that favorite child.

1. Age of the child - follow the label.

Don't buy your two-year-old niece a toy labeled, "Not recommended for children under three." Even though she may be the smartest two year old on the planet, that's not the point. Instead, the government-required labels exist because people have studied why all these kids get injured and occasionally die. For example, researchers know that children under age 3 put things in their mouths. Anything with a diameter of 1.75 inches or less can block their little airways when tots explore their new world with their mouths. Avoid toys with parts this small to minimize the risk of choking.

2. Age of other Children in the house.

What are the odds that a six-year-old boy old will leave his toys accessible to his two-year-old sister? Think about that when buying toys.

3. Avoid sharp toys and brittle toys that might become sharp.

Sharp toys are a problem, especially with children ages 3 through 5. Avoid buying them. When little Johnny opens his toys, inspect them for any unintentionally sharp edges from cheap manufacturing.

4. Loud Noises.

Some toys are loud enough to cause hearing loss. Watch out for items such as cap guns. Look for warning labels such as "Do not use indoors" or "Do not fire closer than one foot from the ear," and teach your children.

5. Propelled Objects & Flying Toys.

Flying toys, guns or other toys that shoot projectiles can become weapons by accident or intentionally. The eye you save might be your own, not just your child's. For toys intended to shoot, make sure the rubber or cork tips are securely fastened, and check them now and then. Avoid guns from which a child can substitute pencils or other items for the rubber-tipped darts, for instance.

6. Cords & Strings.

Long cords and strings are strangulation hazards for children. Not just toys, but also jackets and sweatshirts with strings. Cut off any draw strings longer than 3 inches. Never hang toys with long strings, ribbons or loops in cribs or playpens where children can get at them.

Follow these guidelines to preserve the joy of giving and avoid the tragedy of injury.

Jeff Merrick

Jeff Merrick is an Oregon Attorney who helps children injured by dangerous products and other causes. You may contact him at 503-665-4234.