Oregon Medical Malpractice Laws

According to an Oregon State University report, ​​the state is facing a healthcare worker shortage that can set off a ripple effect in the form of substandard quality of care. In the same vein, personal finance company WalletHub declares Oregon one of the worst states to practice medicine due to factors like physician burnout and hospital safety. These issues can manifest in the form of medical malpractice and negligence if healthcare practitioners continue to be overworked and lack support from the government and the private sector.

Additionally, some medical fields may feel the effects of these issues more severely since they tend to have more risks than others. Obstetrics and gynecology, which deals with pregnancy and the female reproductive system, consistently has one of the highest numbers of medical malpractice claims across different specializations. One in every 33 babies is born with a birth defect every year throughout the country, and many of these occur due to vaginal birth after cesarean delivery.

Thanks to the protection offered by the law to newborns and their families, it is not uncommon for medical malpractice lawsuits arising from VBAC-related injuries to result in multimillion-dollar verdicts and settlements.

At the same time, state and federal laws also look after the rights of other medical malpractice victims, regardless of the medical specialization involved. Many of these laws — together with other legal information and relevant resources — are laid out in this article.

What Qualifies as Medical Malpractice in Oregon?

In Oregon, medical malpractice occurs when a healthcare provider’s negligent or intentional action causes harm to a patient. Per this definition, medical negligence would be a subset of medical malpractice rather than a distinct category, which is the case in some other states.

Some common types of medical malpractice are:

• Making an incorrect or delayed diagnosis;

• Failing to diagnose a medical condition in spite of very visible signs and symptoms;

• Dispensing the wrong medication;

• Not considering a patient’s medical history during treatment and worsening their condition;

• Unintentionally leaving a tool in a patient’s body during an operation;

• Performing surgery on the wrong body part.

However, a bad outcome does not automatically translate to medical malpractice if the medical provider has provided the best level of care to the patient. There are potential risks and side effects with most medical treatments that cannot be controlled by even the best healthcare professionals.

Meanwhile, there is a sound reason to pursue legal action in some types of cases, but under a different legal category altogether. Let’s look at a real-life case as an example:

Across the U.S., countless individuals with sleep apnea experienced injury or death after using CPAP machines from a defective batch. Despite the medical context surrounding these incidents, the victims had no cause to sue the doctors who prescribed them to use the device. The fault was solely placed on its manufacturer — Philips — based on the concept of product liability. This prompted a class-action lawsuit stemming from multiple individual cases.

On the other hand, although similar in theory, a potentially landmark case can lead to hospitals and clinics in Oregon being held partly liable for selling defective medical products in the future. This is unless the ruling is overturned after calls for reconsideration from the healthcare sector.

Who Can You Sue for Medical Malpractice in Oregon?

The possible at-fault parties in medical malpractice cases are not just limited to healthcare professionals, such as the following:

• Doctors;

• Nurses;

• Dentists;

• Physical therapists;

• Mental healthcare workers;

• Anesthesiologists;

• Pharmacists.

They may also pertain to healthcare facilities, clinics, and hospitals, as well as pharmaceutical companies.

In addition, in line with the establishment of the Oregon Tort Claims Act,​ ​government workers and entities no longer have sovereign immunity in most cases. This means they can be sued for medical malpractice if there is just cause to do so.

Exemptions

There are certain provisions of the law that can bar one from filing a medical malpractice case in specific situations. These include:

• When the medical provider is a charitable organization volunteer;

• When the medical provider is licensed in emergency medical services and offered assistance as a volunteer;

• When the service provided is emergency transportation assistance;

• When the medical provider used an automated external defibrillator.

The state’s Good Samaritan Law also gives protection to people who respond to medical emergencies, whether they are medical professionals or not. It was created so those who feel compelled to assist strangers in times of crisis do not have to worry about being sued for doing so. But it should be noted that the law only applies if:

• Medical care is not within reach;

• The action is voluntary;

• The person providing emergency assistance is not negligent.

Medical Malpractice Liability Insurance

Oregon law does not obligate medical professionals and institutions to carry medical malpractice liability insurance. However, it is common for hospitals and similar facilities to require this coverage for their doctors.

Doctors in the state can purchase policies with a limit amounting to $1 million per occurrence. But those who practice in fields with greater risks — emergency medicine and general surgery, for instance — are advised to obtain more extensive liability insurance. In the event that a bad outcome takes place or a treatment does not turn out as expected, the insurance will protect them from legal action and cover any costs associated with it.

What Is the Statute of Limitations for Medical Malpractice Cases in Oregon?

Like other types of personal injury cases in the state, lawsuits involving medical malpractice must commence within two years to be deemed valid. This two-year period — known as the statute of limitations — begins on the date a patient’s injury is discovered or should have been discovered. 

Exemptions

In some cases, the statute of limitations is paused to account for things that may be out of one’s control, such as a person’s age or mental disability.

If the victim is a minor, the two-year timeframe for filing will only begin once they turn 18. However, the statute of limitations cannot be extended beyond five years or beyond a year after they turn 18, whichever comes first.

The same concept applies if the victim has a disabling mental condition — the statute of limitations will only begin after their recovery. Similarly, it cannot be paused for over five years or more than a year after they regain the ability to understand their rights, whichever comes first.

Statute of Repose

The statute of repose, just like the statute of limitations, prevents a victim from pursuing legal action after a certain period.

For medical malpractice cases in the state, the statute of repose does not begin on an injury’s discovery date. In fact, the discovery of harm does not have to occur for the statute of repose to commence. It automatically starts from the treatment or operation date and concludes after five years. This means that, for instance, if a victim finds out about a complication from their operation a decade later, they can no longer file a claim for compensation.

The only time it can be extended is if the victim’s medical provider engages in misleading, deceitful, or fraudulent misrepresentation. In this case, a lawsuit can be filed within two years from the date of such misrepresentation.

What Do You Need to Prove in an Oregon Medical Malpractice Case?

To prove that a healthcare provider committed medical malpractice, four elements linking their action to the harm incurred by the victim need to be present:

• Duty of care: This means a doctor-patient relationship existed between the parties involved.

• Breach of duty of care: Medical providers have a responsibility to observe a standard of care, and failure to uphold this constitutes a breach of this duty.

• Harm caused by said breach: In other words, the patient's injury or condition was a direct result of the medical provider's failure to uphold their duty of care.

• Damages caused by said harm: The patient’s injury or condition caused them to suffer damages.

A plaintiff has different ways to prove these four elements, including showing evidence in the form of witness testimonies. As such, qualified medical experts specializing in the same field may be brought to the witness stand to establish the defendant’s liability.

In some cases, the concept of res ipsa loquitur (“the thing speaks for itself”) may also be utilized to help prove fault. This is when the type of harm incurred by the victim does not typically happen without negligence, and one can safely assume that the defendant was negligent in some way due to the harm or injury’s occurrence.

However, unlike in most states, plaintiffs in medical malpractice cases in Oregon cannot use a defendant’s expression of apology as proof of liability.

How Much Can You Sue For Medical Malpractice in Oregon?

If you are a medical malpractice victim and are planning to sue the healthcare provider who caused you harm, you need to know how much your case is worth. Knowing how to determine the damages you are entitled to is a step in the right direction toward pursuing justice.

Types of Damages

In successful medical malpractice lawsuits, plaintiffs are typically entitled to receive both general and special damages. The amount of these damages would depend on various factors, such as the severity of one’s injury and the costs incurred during treatment. However, in certain situations, a cap is placed on the amount of damages one can obtain.

The table below summarizes general and special damages’ scopes and limits in medical malpractice cases in the state:

Depending on the facts of a case, the at-fault party may also have to pay punitive damages. This is a form of punishment that may be imposed if their act is deemed intentional or malicious. Note that state law protects most healthcare providers and certain government entities from having to pay punitive damages.

Negligence System

The state of Oregon follows the modified comparative negligence doctrine when it comes to medical malpractice cases. This means that a plaintiff’s contribution to their injury does not invalidate their claim to receive compensation for the damages they have incurred.

Nevertheless, being partially at fault can affect the total value of one’s case. For instance, if a victim is found to be 40% responsible for their injury, the same percentage will be subtracted from their compensation. Therefore, if they are bound to receive a $100,000 award, it will be reduced to a final amount of $60,000.

Meanwhile, if one’s degree of fault is deemed to be 51% or more, they are totally barred from pursuing any amount of compensation.

Methods of Obtaining Compensation

In most cases, taking part in mandatory dispute resolution is part of the legal process when one is pursuing a medical malpractice lawsuit in Oregon. This is a way for parties to reach a settlement agreement without needing to go to court.

Some methods used to reach a resolution are mediation, arbitration, or a judicial settlement conference. Any party or their attorney who does not comply with any of these procedures may be subject to disciplinary action.

But even without the threat of punishment, many plaintiffs and defendants prefer settling a case through dispute resolution. This is because it would mean spending less time and money to finalize a case.

However, if an agreement between parties cannot be reached, the next step would be to take one’s case to court.

How Much Does It Cost to Pursue a Medical Malpractice Case in Oregon?

If you are a medical malpractice victim, know that taking legal action can be an unpredictable and costly pursuit. There are various things that can affect the amount you will have to shell out, such as your choice of medical malpractice lawyer. Because of this, it is important to carefully decide on the person representing you to avoid issues concerning attorney fees.

In medical malpractice cases, most lawyers get paid on a contingency basis. This means they are taking a risk by only agreeing to receive payment if your case is successful. This is a good thing if you would rather focus on spending the money you currently have on healthcare costs and related expenses. Be aware, though, that medical malpractice attorneys typically only agree to a hefty contingency fee — anywhere from 33% to 40% of any damages you get to recover.

When determining how much it costs to pursue a case, you also have to consider the fees to be incurred from different procedures and documents. These include case filing, dispute resolution, and deposition, as well as police and medical records.

Legal Resources for Medical Malpractice Victims in  Oregon

Dealing with the health-related repercussions of a medical provider’s negligence while pursuing a case against them can be overwhelming. Knowing how many people in Oregon go through this predicament, different state agencies and organizations aim to make the experience less trying through various programs and resources.

Oregon Medical Board Resources

The Oregon Medical Board has a page detailing how people can file a complaint against a medical board licensee who did not provide the right standard of care. It discusses the process and the kinds of information required from complainants.

The board’s website also has a Malpractice Claim Information section that may prove to be helpful in some cases. One can use its search page to discover if a medical provider has a history of medical malpractice. However, do take note of the following caveats:

• Having a medical malpractice settlement record does not necessarily mean a board licensee committed medical malpractice.

• Some medical malpractice claims are not submitted to the board, so a board licensee may have a medical malpractice history even without a record.

Oregon Health Plan

The Oregon Health Authority established the Oregon Health Plan to provide Medicaid coverage to qualified low-income individuals. If you are a medical malpractice victim who wants to know if you are eligible for the service, you may send an application online. You may also apply by calling 800-699-9075, faxing 503-378-5628, or sending postal mail addressed to:
PO Box 14015
Salem OR 97309

For more information, call 1-800-273-0557 or send an email to Ask.OHP@odhsoha.oregon.gov.

Oregon State Bar Programs

The Oregon State Bar lists various programs that can help people — including medical malpractice victims — gain legal assistance. These include a lawyer referral service, a modest means program for individuals from moderate-income households, and an initiative to help minors obtain legal advice.