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Thursday, July 6, 2006

OHSU strikes out

The Oregon Court of Appeals has ruled that individual doctors and nurses at Oregon Health and Science University (and their insurance companies) are not protected by the $200,000-per-botched-procedure liability cap that OHSU itself enjoys under state law. It looks like a truly significant victory for the plaintiff, a boy who was left seriously brain-damaged by alleged negligence up on Pill Hill. The opinion of the unanimous three-judge panel (which interestingly, included Oregon Supreme Court candidate Virginia Linder) is here.

OHSU says it will appeal further. Can't waste money taking care of that boy when we've got an aerial tram to build.

Comments (1)

For personal reasons, this is a very timely decision. Importantly, it puts the individually named Defendants back into play. See, e. g., Kenneth Ackerman v. OHSU Medical Group, OHSU, et al., Multnomah County Circuit Court Case No. 0408-08851.

Posted by: Ed Numrich at July 6, 2006 04:37 AM

Nice to see OHSU worrying about how the ruling could affect school districts, etc...Very genuine.

Posted by: Bill McDonald at July 6, 2006 06:41 AM

At first glance, that seems like a decision with some pretty solid logic behind it.
I note, though, that the decision doesn't appear to completely wipe out the caps. The court seems to have ruled only that the caps are unconstitutional when they provide a remedy that is much less than the plaintiff's damages. According to the court's logic, it's conceivable that a cap of $200,000 would have been upheld if the boy's damages had been, say, $400,000. Here, however, limiting total recovery to $200,000, when alleged damages were upwards of $12,000,000, went too far.
So if OHSU would just screw people up a little less, it will have more money for the ski lift.

Posted by: Jud at July 6, 2006 08:38 AM

Has anyone from OHSU ever answered the question "How can you justify paying $200,000 to a kid whose medical injuries, which are indisputably your fault, will cost $11,000,000 over the cost of his life?" Leave all the conservative rhetoric about escalating malpractice insurance aside, and answer this particular question. Nobody disputes that their negligence caused his impairment, and nobody disputes that this impairment is costly. Can anyone justify why it's fair to pay him 1/50th of what he'll need over the course of his life??

Posted by: Dave J. at July 6, 2006 09:10 AM

Dave J.... *rimshot* !

Posted by: Kari Chisholm at July 6, 2006 09:25 AM

I don't know who wrote OHSU's statement reacting to the ruling on liability caps. Something this important was probably kicked around by the entire PR department. Anyway it was quoted in the Oregonian as "hospital officials" who said the ruling, "has enormous implications for the state and all other public bodies in the state -- cities, school districts, counties, ports -- as well as OHSU." School districts, huh? One tip to future PR hacks who might be following this case: If you're currently fighting a child's family for the right not to pay them for brain damage your institution was alleged to have caused, you might not want to bring up what this will do to the school districts. You mean because of this ruling our children might not have enough financial support for their needs? Gee, thanks for being such wonderful caring people. Clearly the OHSU Irony Bell isn't working right. Maybe the City Council can buy them a new one.

Posted by: Bill McDonald at July 6, 2006 09:31 AM

Well OHSU is a "sort of" public agency when it wants protection from suites and Portland Development Commission is a "quasi-independent" agency. Neither is subject to controls from the electorate from which they originally sprang. Is it not time to bring these agencies back to a more direct accountability?

Posted by: Don Bevington at July 6, 2006 10:00 AM

How will it affect other public agencies? I thought they were *private* ?

Or is that just when they want to build a tram?
When it comes to money, they are public?

They need to friggin pick one and stay with it.

Posted by: Jon at July 6, 2006 10:15 AM

I think what OHSU was trying to say is that if a School District is negligent and causes your kid to be disabled, that they might not be able to use the $200,000 cap, so schools may have to buy insurance, meaning less money going to the classrooms.

Posted by: Michael at July 6, 2006 10:25 AM

Oh, I understand OHSU's point that the ruling could hurt kids. They might not have enough money for their needs. I just think it's ironic that OHSU would bring that concern up when the whole case is about the kid who they hurt not having any money for his needs.

Posted by: Bill McDonald at July 6, 2006 10:38 AM

When you consider the manifold ironies and injustices of OHSU's position on the Jordaan Michael Clarke case remember that they stipulate (that is they do not dispute) that it was their negligence that precipitated the injury.

To admit and then fight compensation to such a victim is not only repugnant; it is at odds with the most basic precepts of medical ethics.

And also remember that if the Clarke's had thrown in the towel, like so many plaintiff's have in the past when trying to battle OHSU, and accepted the $200,000 settlement, it would have been garnished from their bank account the day they cashed the check. That's right, according to briefs in the case OHSU has filed over $200,000 in liens against the family for unpaid medical bills. So they not only admit their negligence, they bill and pursue collection for the services that caused the damages to boot.

But wait you say, didn't Dr. Kohler propose a remedy to this, didn't he say they were going to "disclose" to all patients the existence of the liability cap? A tough but brave call by the visionary on the hill. More like his last laugh right before he gets his picture taken standing below the marquis of the new palace that bears his name. Disclosing, and then requiring the patient to acknowledge they have read and understand the limitation on OHSU's liability, will create a very effective waiver. See Judge, they knew what they were getting into when they read and signed this document at the time of admission. Case dismissed. Cap stands. The greater public good is served.

But for now we'll have to see if the Supreme's will see the inherent logic and decency of OHSU's position and in doing so let them get this little pest named Jordaan Michael Clarke off their backs for good.

Posted by: Arcadian at July 6, 2006 10:59 AM

I don't know if disclosure and waiver would be sufficient in a court. If the person needed the surgery, and the waiver was required for treatment, a court might see that as some sort of adhesion contract or one with unconscionable terms. There are myriad ways a court could dispose of the waiver in an appropriate case, even if OHSU tried to assert it.

Posted by: Jud at July 6, 2006 11:07 AM

The line about "this hurts the schools" is one of the phoniest statements I have ever heard uttered by a public official in my life -- and that's saying a lot.

Posted by: Jack Bog at July 6, 2006 11:52 AM

The O's headline reporting this story is, "OHSU loses liability cap". From my reading of the decision you posted, KATU.com's headline of "Court rules against protecting doctors and nurses" is more accurate. The court ruled OHSU is indeed still limited to the $200,000 cap under state law. Plaintiffs may, however, go after the individual caregivers involved in the case. Correct?

Posted by: Amanda Fritz at July 6, 2006 12:12 PM

I think that's right. But the individual caregivers probably have liability insurance, and it's probably paid for by OHSU. Correct?

Posted by: Jack Bog at July 6, 2006 12:14 PM

And the case does not address the liability of the shadowy "medical group" entity that shows up here and there when it suits the OHSU bigwigs.

Posted by: Jack Bog at July 6, 2006 12:16 PM

I'm a little fuzzy on some aspects of this, but I think a couple things apply:
1) The medical professionals almost certainly carry liability insurance, which should cover the damages for which the independent defendants are liable. Whether OHSU pays for this is probably irrelevant.
2) OHSU may still end up paying more than the statutory cap. If I understand correctly, the cap is for an action against the public body. However, the suit now is continuing against the individual employees, acting in their official capacities. In that case, assuming the liability insurance doesn't pay, it seems like OHSU might be in the position of indemnifying the actions of the individual defendants and paying more than the statutory cap, since the suit is no longer against the entity.

I hope someone will point out if I've applied those ideas incorrectly.

Posted by: Jud at July 6, 2006 01:24 PM

Jack: And the case does not address the liability of the shadowy "medical group" entity that shows up here and there when it suits the OHSU bigwigs.

My understanding is that OHSU has indemnified OHSU Medical Group. (The goal being to include them in the $200,000 cap.) That may backfire because if they someone gets an award against OHSU Medical Group OHSU might have to pay it. (And would OHSUs insurance cover any of that, since their rates are probably based on having the cap in place.)

Posted by: Michael at July 6, 2006 02:10 PM

On further research:

It appears that state law requires public bodies to defend its employees against lawsuits. The statute is at http://www.leg.state.or.us/ors/030.html

OHSU covers its corporate and employee insurance liability through a combination of self-insurance and commercial insurance through a 1997 contract with a company based in Bermuda. So continuing the suit against the individual practitioners is indeed likely to cost OHSU, in this case and in the future.

The statute above references "within the scope of practice." Is it possible for the public body to say, "not our problem, the employee didn't follow the hospital policy for standards of practice", and then the injured child is still left with no hope of recovering the cost of ongoing care because the individual practitioners don't have personal liability insurance worth $11m?

Posted by: Amanda Fritz at July 6, 2006 02:41 PM

I'm not sure the hospital can argue as you've suggested, because then they would be liable under a theory that they didn't properly supervise the employee (although, I suppose that would be a good thing for them, since any further recovery would fall into the capped amount).
And besides, "within the scope of practice" sure seems like it is meant to differentiate injury at the hands of a doctor practicing medicine from injury at the hands of a doctor driving the transit bus.

Posted by: Jud at July 6, 2006 02:49 PM

Bill and others: it is funny to read how OHSU doesn't want to "hurt the children". Did Oregonian Editor Bob Caldwell's wife Lori (OHSU Public Relations Director) think of all the other ways OHSU has "hurt the children" in the recent past, to wit;

that the OHSU/Schnitzer 30 plus acres of North Macadam is taken off the taxroll to help pay for schools;

that OHSU's first "health club/doctor office building" pays no taxes, tri-met taxes, etc. and received over $5M tax dollars(30% school dollars) for incentives for bio-tech jobs in the building that has not generated ONE bio-tech job;

that the Hillsboro OHSU/OGI property pays no taxes now or in the future for "the children";

that the proposed North Macadam first OHSU parking garage of over 1200 cars will pay no property taxes, etc. for the children even though it will provide parking for more than OHSU use, and generate income for OHSU;

that the tram, even though 85% or more will be used by OHSU, will pay no taxes for "the children";

that the land occupied by the tram which could have produced taxes "for the children" will not be generating any tax dollars;

the list goes on, but OHSU is "thinking of the children".

Posted by: Jerry at July 6, 2006 03:37 PM

Don't forget the three huge diesel engines that will be pulling the aerial tram around "for the children," spewing filth onto the condo decks. But hey, it will be 10 percent biodiesel, the operators will wear dreadlocks, and they'll be piping in "It's a Small World After All."

Posted by: Jack Bog at July 6, 2006 03:41 PM

continuing the suit against the individual practitioners is indeed likely to cost OHSU, in this case and in the future.

As well it should. The licensed professionals at the hospital wrecked a young, innocent person's life through negligence. Now somebody has to pay for that. It's called justice.

Posted by: Jack Bog at July 6, 2006 03:43 PM

Now somebody has to pay for that. It's called justice.

Agreed. I was calling attention to the fact that neither the O nor KATU accurately reported what the court ruled. And then wondering who the "somebody" would be.

It would be helpful if the state and federal government returned to the concept of "justice", and entirely rewrote the liability laws for medical malpractice. First and foremost, anyone injured should be taken care of, for life. Any set of laws that doesn't implement that basic principle, quickly and universally, is inherently flawed.

Posted by: Amanda Fritz at July 6, 2006 04:06 PM

in case you didn't hear, the ohsu tram now has a myspace page. go ahead, make up, and be friends.


Posted by: a friend of the tram at July 6, 2006 04:20 PM

Under the current system, this boils down simply to how much malpractice insurance coverage OHSU has to buy. I have no sympathy for them. They should pay just like all the other doctors in the area do.

Posted by: Jack Bog at July 6, 2006 04:53 PM

You know, the Oregonian/Lora connection has gotten a lot of notice, but I actually thought the paper did a good job of covering this, in the sense that they put a large picture of the kid on the front page reminding everyone in Portland what this is really about. As for the annoying nature of the PR statement from OHSU, yes, that was a pathetic quality of work but you don't have to delve that deeply to find intense hypocrisy from the OHSU team. This same institution was whining to us only recently about how unfairly they were being treated. Remember the "deal is a deal" days? They were threatening to go to court to rectify this big wrong that could happen to them over the tram, at the same time they were fighting this kid's family in a situation that's a lot more serious than how many minutes it takes to get up a hill. How do you go from demanding fairness for yourself to being that unfair to someone else? How does that work?

Posted by: Bill McDonald at July 6, 2006 06:14 PM

I think Amanda has a good point, I don't the the majority of professionals are purposefully negligent or irresponsible, unless they have problems with substance abuse or mental health issues. It should be a no brainer that if you are injured by malpractice or an honest mistake, that your medical bills and caregiver be covered. This is especially evident in that little boys case. It would seem that the hospitals could get together in some type of coop agreement to provide malpractice compensation services and care for eachother's victims at cost, as probably the victim isn't keen on going back to the same hospital that they had the problem with. Then I don't have a problem with the cap on malpractice except in those cases of clear problems with the Dr. Actually the Dr. speaking to City Club about the problems in health care had some good ideas about malpractice reform. He said in most industrialize countries the larger awards were applied to fixing the problem that caused the injury, kind of like those folks about 10 years ago whose son was killed accidently in a police shotout, who instead of a large award cut a deal with the Portland Police for additional training so that it reduced the odds of some other child being harmed, and didn't kid themselves that a large amount of money would heal the loss of their son. I would guess these folks' souls and hearts are the better for it, even though the loss of their son will claim an empty space forever.

Posted by: Swimmer at July 6, 2006 07:47 PM

"Then I don't have a problem with the cap on malpractice except in those cases of clear problems with the Dr."

Swimmer, I hope you never suffer a catastrophic injury because of medical negligence, whether or not the doctor has "clear problems," is "purposefully negligent," substance abusing, or none of the above.

But I suspect such a happenstance may cause you to develop a "problem with the cap."

Posted by: Sam at July 6, 2006 08:37 PM

Regarding OHSU saying it will appeal further: In 1996, I learned an interesting fact about OHSU after I finished serving on a jury that heard a civil matter involving an OHSU employee suing OHSU on an IP matter: Back then, if OHSU settled the matter out of court, they would have been obligated to pay all of the settlement costs out of their operations budget. But if they just stuck it out and continued to fight it in the courts, the state (i.e. taxpayers) was obligated to cover all of their litigation expenses, off budget. Not surprisingly, they fought it - even when it appeared to be hopeless for them. Why not?

Any idea who's paying their legal bills now on this matter?

Posted by: John Rettig at July 6, 2006 11:18 PM

Wow, is that still the dynamic up there? Anybody know?

Posted by: Jack Bog at July 6, 2006 11:24 PM

One thing to keep in mind: hospital, research, and education funds at OHSU are separate. Expenses related to the hospital have to be paid from hospital funds, not from bond money or anything else. OHSU provides a tremendous amount of uncompensated care for people without insurance, far more than what the State gives back in support, far more than any other hospital in the area. If you don't like the liability cap, great, but then any money paid out by OHSU on lawsuits will diminish their capacity to care for people without insurance. They can't print money, and resources are not unlimited.

Posted by: Jim Holman at July 7, 2006 06:30 AM

Excellent point, Mr. Holman! I use a similar argument and, like OHSU, am unduly castigated.

See, when I'm downtown I like to punch strangers in the mouth. Then tend to get uppity afterward for some strange reason but I just tell them, "You shouldn't punish me for my ill behavior, I work with the homeless. And baby seals. Baby seals with birth defects."

Posted by: Anahit at July 7, 2006 07:38 AM

For those of you so inclined, the briefs that were filed in this Oregon Court of Appeals case are available as PDF documents and we can email them to you (one's really large so maybe not all at once :-). For details, see the July 7th, Oregon Legal Research blog posting at: http://oregonlegalresearch.blogspot.com/

Posted by: Laura the Law Librarian at July 7, 2006 08:11 AM

It's not a mattter of "punishing" OHSU. It's an issue of limited resources. Do you want the hospital that provides a disproportionate amount of charity care to also have the same financial liability as hospitals that provide a fraction of that care? If so, great, but don't be surprised if OHSU has to cut back on what it does for the uninsured.

Posted by: Jim Holman at July 7, 2006 09:01 AM

I second that Jim! The dollars lost on care for folks with no insurance is staggering. And, what Medicaid and Medicare pays us, er...I mean OHSU, doesn't even cover the costs of providing the care. Do we want them to close the doors to money losing patient care for old folks and poor people? I doubt it.

There's lots to beat up OHSU about, and I believe they should provide care for the kiddo for life, but I would hate to see them opened up to unbridled liability. Also, OHSU is such an easy target to beat up, but when push comes to shove and people have a terrible traumatic injury or life threatening illness, they're typically knocking on OHSU's door as "the best". Go figure?!

Posted by: JustLooking at July 7, 2006 11:46 AM

Point noted. I will now change my bleeding-mouthed stranger response to "You shouldn't recover full damages for my ill behavior--it means I'll have less money available to donate to charity!"

Posted by: Anahit at July 7, 2006 12:46 PM

OHSU is a very easy place to beat up on. It is a huge, complex organization with many players and a very complicated financial structure, difficult even for employees to understand. I worked there for 21 years and was laid off along with 64 others last year. So I wouldn't say I'm an OHSU cheerleader. I will only say that it's easy to take cheap shots at OHSU, but if you really want to understand the organization, the good and the bad, you have to work at it.

Posted by: Jim Holman at July 7, 2006 01:02 PM

ALL I have to say is...ITS ABOUT TIME! I am thrilled that someone has finally broken through the wall. My son was overdosed by OHSU in 2000...and died. Beacuse of them being a "state" owned hospital we did not get far....and of course we could not sue the individuals back then. I am just relieved that there is now help for those who deserve every penny! I know people make mistakes but that does not mean you should ignore them or because your "part of the State" not compensate....again YAY!!!!!

Posted by: Stacy at July 12, 2006 02:44 PM

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