If you read last week’s Did You Know? message, you will see that I noted that state constitutions do not need to be read the same as the federal constitution. Shortly after that post, the Oregon Supreme Court issued an opinion illustrating this distinction.


Oregon has a law that limits non-economic damages to $500,000 in a particular case. The Oregon court, however, has ruled in several cases that, in many situations, the limit violates two clauses in the state constitution, one guaranteeing a right to jury trial and the other guaranteeing that the law provide a form of remedy to enforce rights. (That “right to a remedy” clause doesn’t mean that you have to like the remedy provided, so long as it’s a substantial one. It also doesn’t mean that you get the remedy because you think you’ve been wronged. You have to prove it.)


The new case was a medical malpractice suit by parents for injuries to a baby that occurred during delivery. They argued that they hadn’t been given sufficient information to decide whether to have a C-section or to have a natural birth, and the obstetrician on duty at the time of delivery wasn’t warned about the risk. As it turned out, there was a significant risk that their baby might get stuck during delivery, and in fact he did, suffering nerve damage that severely limited the use of his right arm. A jury awarded over $550,000 in economic damages (probably for medical care) and $1.375 million for non-economic damages (mostly pain and suffering). The trial judge ruled that the $500,000 limit could not be applied, and the hospital appealed.


Oregon courts have interpreted the two constitutional clauses to protect categories of claims that existed at the time of Oregon’s constitutional convention in 1857. Medical malpractice was recognized in 1857, but three 19th century cases (one from Massachusetts, one from Illinois, and one from Ireland) raised a question whether an unborn child could recover for injuries to the mother. The court decided these cases were different; the mothers had been injured before the children were born, and the children bore the brunt of the blow. In the new case, the baby himself was injured in delivery, and had in fact been partly delivered. The injury also was of a kind that directly affected the baby’s right not to be injured by negligence, as opposed to a the mother’s right. As a result, the court ruled that the $500,000 limit could not be applied.


Oddly, if the baby had died as a result of his injuries, the limit would have applied. This is because the right to recover for wrongful death was created by the legislature. In Oregon, categories of claims created by statute can be limited, and the courts ruled about 20 years ago that the limit is constitutional when applied to wrongful death.


Constitutional law questions, and questions of law in general, can often turn on fine points like these. If you think your case presents an unusual set of events, and you want to discuss it with a lawyer, let the lawyer know in the beginning so that he or she can tell you if it really is different from the usual situation. That way, you can get advice whether a recognized exception might apply, or whether it may be necessary to argue that the courts recognize a new exception. Just be aware that asking the courts to recognize new rules or exceptions can be expensive, as you’ll probably have to go through at least one appeal after the initial ruling.


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