Oregon Malpractice Damage Cap Heads to Ballot

Victims of medical malpractice would be denied their rights by a limit on damage awards, foes of the idea say, while advocates say the rising cost of malpractice insurance is keeping doctors out of Oregon.

For the second time in four years, Oregonians will have a chance in the November election to restore the state’s $500,000 limit on so-called pain and suffering awards.

“Oregon is one of the 18-19 states designated in crisis by the American Medical Association” because of malpractice insurance costs, said Dr. Colin Cave of Portland.

Cave, the immediate past president of the Oregon Medical Association, said high insurance costs make it difficult to recruit doctors to the state. That’s particularly true, he said, for specialties like obstetrics that have a relatively high risk of costly malpractice lawsuits.

“The American College of Obstetricians and Gynecologists tells medical residents to avoid states like Oregon,” Cave said.

But foes of the initiative measure that will be on the Nov. 2 ballot say many factors such as inflation in overall health care costs influence insurance rates.

“These initiatives do nothing to lower insurance costs,” said Charlie Burr of Trust Juries for Responsible Solutions, a coalition of groups opposing the damage limit.

The measure was approved for the ballot in late July. Election officials said sponsors submitted well over the 100,000 valid voter signatures needed to send the issue to voters.

President Bush has given the issue national prominence by urging Congress to enact a national malpractice damage cap. Such legislation has passed the House but repeatedly has stalled in the Senate.

Oregon had a $500,000 lid on noneconomic (pain and suffering) damages from 1987 to 1999, when the state Supreme Court struck down the law as violating state constitutional rights to a jury trial.

Lawmakers then sent a proposed constitutional amendment to voters that would have allowed damage award limits in civil lawsuits generally, not just in medical malpractice cases. Voters trounced the measure by a 3-to-1 margin.

That result may indicate an uphill fight is in store for supporters of the new although narrower measure.

Doctors say soaring insurance costs are making it a matter of professional survival for some. They are braced for an expensive fight against lawyers and consumer and victims’ advocates on the other side of the issue.

Organized as Oregonians for Quality, Affordable and Reliable Health Care, the measure’s backers have raised $4 million so far and spent almost $1 million of it to put their initiative on the ballot.

Doctors say malpractice insurance premiums are driven up by huge awards obtained by attorneys who play on jurors’ emotions.

The situation is leaving residents of some rural towns entirely without access to some kind of care, said Dr. Michelle Petrofes of Reedsport.

The practice with which she works, seven doctors and nurse practitioners, offered obstetrics for 17 years but quit delivering babies after malpractice insurance rates last year jumped by 30 percent.

Petrofes said that has forced residents of the southern coastal town to travel to Florence or Coos Bay, for a minimum 40-mile round trip, to get obstetrics care.

She said her group’s practice has faced only two malpractice lawsuits, resulting in a ruling in a doctor’s favor in one and an out-of-court settlement in the other.

On the other side, Burr said insurers have significantly boosted premiums in states with and without liability caps.

“You can look at states that have caps that have high premiums, and states with low premiums that have no caps,” he said.

He said big pain and suffering damage awards aren’t the norm in Oregon. Just nine awards of more than $1 million have occurred in the state in the past nine years, he said.

Damage caps are inherently unfair to victims who suffer very traumatic damage such as brain injury, said Kristi Schaefer, who owns an Oregon City company that manages care for brain injury survivors.

“Each brain injury is so unique as to make a one-size-fits-all award simply not meet the needs of clients,” said Schaefer, a past president of the Oregon Brain Injury Association.

“These people can’t think for themselves, they’re living on feeding tubes and in foster homes, they’re lifetime cases,” she said. “How can you put a cap on that and say it’s only worth so much money?”

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