Horton v. Or. Health & Sci. Univ., Corp.

• Decision Date: 05 May 2016
• Docket Number: CC 1108–11209,SC S061992.
• Citation: 376 P.3d 998,359 Or. 168
• Parties: Lori HORTON, as guardian ad litem and Conservator of and for T.H., a Minor, Plaintiff–Respondent, and Lori Horton, individually; and Steve Horton, Plaintiffs, v. OREGON HEALTH AND SCIENCE UNIVERSITY, a Public Corporation, Defendant, and Marvin Harrison, M.D., Defendant–Appellant, and Pediatric Surgical Associates, P.C., an Oregon Professional Corporation; and Audrey Durrant, M.D., Defendants.
• Court: Oregon Supreme Court

359 Or. 168

376 P.3d 998

Lori HORTON, as guardian ad litem and Conservator of and for T.H., a Minor, Plaintiff–Respondent

and

Lori Horton, individually; and Steve Horton, Plaintiffs

v.OREGON HEALTH AND SCIENCE UNIVERSITY, a Public Corporation, DefendantandMarvin Harrison, M.D., Defendant–Appellant

and

Pediatric Surgical Associates, P.C., an Oregon Professional Corporation; and Audrey Durrant, M.D., Defendants.

CC 1108–11209

SC S061992.

Supreme Court of Oregon.

Argued and Submitted Nov. 6, 2014.

Decided May 5, 2016.

Roy Pulvers, Holland & Knight, LLP, Portland, argued the cause and filed the briefs on behalf of appellant. With him on the briefs were Janet M. Schroer, Hart Wagner LLP.

Maureen Leonard, Portland, argued the cause and filed the brief on behalf of respondent. With her on the brief were David K. Miller and Robert S. Wagner, Miller & Wagner LLP, Portland.

Kimberley Sewell, Tri–County Metropolitan Transportation District of Oregon, Portland, filed the brief for amicus curiae Tri–County Metropolitan Transportation District of Oregon.

Keith M. Garza, Oak Grove, filed the brief for amicus curiae Governor John Kitzhaber, M.D.

Harry Auerbach, Chief Deputy City Attorney, Portland, filed the brief for amici curiae League of Oregon Cities and Association of Oregon Counties.

Lindsey H. Hughes, Keating Jones Hughes, P.C., Portland, filed the brief for amicus curiae Oregon Medical Association. With her on the brief were Hillary A. Taylor and Tamara X. Arthur.

Thomas W. McPherson, Mersereau Shannon, LLP, Portland, filed the brief for amici curiae Oregon School Boards Association, Citycounty Insurance Services, Special Districts Association of Oregon, University of Oregon, Oregon State University, and Portland State University.

Travis Eiva, The Corson & Johnson Law Firm, Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, and BREWER, Justices, and LINDER, Senior Justice pro tempore.^**

KISTLER

, J.

The question that this case presents is whether a statute limiting a state employee's tort liability violates either the remedy clause of Article I, section 10, of the Oregon Constitution

or the jury trial clauses of Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution. The trial court held that the statute, as applied to the state employee, violated each of those provisions and entered a limited judgment against the employee for the full amount of the jury's verdict. On direct appeal, we reverse the trial court's limited judgment and remand this case to the trial court for entry of a judgment consistent with this decision.

Plaintiff's six-month-old son developed a cancerous mass on his liver

. Two doctors at Oregon Health & Science University (OHSU) participated in an operation to remove the mass: Dr. Harrison, a specialist in pediatric surgery, and Dr. Durant, a pediatric surgical fellow in training. During the operation, the doctors inadvertently transected blood vessels going to the child's liver. That act has resulted in the child having to undergo a liver transplant, removal of his spleen, additional surgeries, and lifetime monitoring due to the risks resulting from the doctors' act.

Plaintiff brought this action on her son's behalf against Harrison, Durant, OHSU, and Pediatric Surgical Associates, P.C. The trial court granted Pediatric Surgical Associates' motion for summary judgment, and it dismissed Durant as a result of an agreement among plaintiff, OHSU, and Harrison. Pursuant to that agreement, Harrison and OHSU admitted liability for the child's injuries and plaintiff's case against Harrison and OHSU went to the jury to determine the amount of the child's damages. The jury found that plaintiff's son had sustained and will sustain economic damages of $6,071,190.38 and noneconomic damages of $6,000,000.

After the jury returned its verdict, OHSU and Harrison filed a motion to reduce the jury's verdict to $3,000,000 based on the Oregon Tort Claims Act. The trial court granted the motion as to OHSU. It ruled that, because sovereign immunity applies to OHSU, the legislature constitutionally may limit the damages for which OHSU is liable. See Clarke v. OHSU, 343 Or. 581, 600, 175 P.3d 418 (2007)

(so holding). The trial court, however, denied the motion as to Harrison. Harrison had argued that, in 1857, he would have been entitled to discretionary immunity for errors occurring during surgery. It followed, he reasoned, that, because he would not have been liable for any damages in 1857 for his negligence, the Tort Claims Act limit may be applied constitutionally to him. The trial court disagreed with that argument. It then ruled that the Tort Claims Act limit, as applied to Harrison, violated the remedy clause of Article I, section 10, and the jury trial clauses of Article I, section 17, and Article VII (Amended), section 3. The court accordingly entered a limited judgment against Harrison for all the damages that the jury had awarded.

Harrison (defendant) filed a direct appeal to this court from the limited judgment. See ORS 30.274(3)

(providing for direct appeals to this court from limited judgments arising from application of tort claims limitations).¹ On appeal, he assigns error to the trial court's post-verdict ruling denying his motion to limit the jury's verdict against him pursuant to the Tort Claims Act. He raises three arguments in support of that assignment. Initially, he reasserts the discretionary immunity argument that the trial court rejected. Alternatively, he asks us to reexamine our cases interpreting the remedy clause and the jury trial clauses. He raises separate arguments regarding each clause, but essentially he contends that our cases interpreting those clauses rest on a faulty understanding of history, are inconsistent with later cases, and should be overruled.

Having considered defendant's discretionary immunity argument, we agree with the trial court's ruling on that issue. Explaining why we agree would be of little value to anyone other than the parties. We accordingly uphold the trial court's ruling on that issue without further discussion and turn to the question whether the limit that the Tort Claims Act places on a state employee's damages violates either the remedy clause of Article I, section 10

, or the jury trial clauses of Article I, section 17, and Article VII (Amended), section 3.

As explained below, we conclude that the right to a remedy protected by Article I, section 10

, and the right to a jury trial protected by Article I, section 17, address related but separate issues. Article I, section 10, limits the legislature's substantive authority to alter or adjust a person's remedy for injuries to person, property, and reputation. Article I, section 17, guarantees a jury trial in those classes of cases in which the right to a jury trial was customary at the time the Oregon Constitution was adopted and in cases of like nature. However, Article I, section 17, places no additional substantive limit on the legislature's authority to alter or adjust remedies beyond that found in Article I, section 10. Accordingly, we begin with the question whether the Tort Claims Act limit violates the remedy clause of Article I, section 10.

I. ARTICLE I, SECTION 10

The Tort Claims Act both waives the state's sovereign immunity and, as applicable here, limits the tort liability of the state and its employees to $3,000,000. ORS 30.265(1)

; ORS 30.271(3)(a).² The act imposes, as a matter of Oregon law, a legal limit on the amount of damages that a plaintiff may recover against the state and its employees. Following Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001)

, the trial court ruled that, as applied to defendant, the Tort Claims Act limit violated the remedy clause of Article I, section 10.³ On appeal, defendant argues that we should overrule Smothers, as well as our other remedy clause cases, and hold that Article I, section 10, is not “a substantive guarantee of a remedy * * * [but] rather, guarantees access to the courts [only] for such remedies as the law may provide.” Defendant and his amici argue that Smothers based its holding on an incomplete view of the historical circumstances surrounding Oregon's remedy clause and drew inferences that even its doubtful premises cannot support. See generally Jonathan M. Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers LJ 1005 (2001)

(detailing some of the historical assumptions in Smothers that may have been faulty); see also

Klutschkowski v. PeaceHealth, 354 Or. 150, 178–96, 311 P.3d 461 (2013) (Landau, J., concurring) (describing problems with the historical analysis in Smothers ). Alternatively, defendant argues that, even if Smothers is good law, the damages available under the Tort Claims Act are “substantial” and thus constitutional. See

Howell v. Boyle, 353 Or. 359, 298 P.3d 1 (2013).

Plaintiff responds that Smothers “was a correct interpretation of the remedy clause,” although she does not question the history on which defendant relies. Plaintiff relies instead on an earlier line of this court's cases interpreting the remedy clause, which consistently have held that the remedy clause imposes a substantive limit on the legislature's authority to alter or adjust remedies for certain kinds of injuries. As plaintiff interprets Smothers, that decision did not tie the protections of the remedy clause to Oregon common law as it existed in 1857. Rather, plaintiff contends that Smothers requires a remedy that “ ‘either restores the status quo or compensates the injured party for the loss.’ ” (Quoting Holden v. Pioneer Broadcasting Co., 228 Or. 405, 365 P.2d 845 (1961)

(Goodwin, J., dissenting), cert. den., 370 U.S. 157, 82 S.Ct. 1253, 8 L.Ed.2d 402 (1962) ).

Plaintiff's argument appears to rest on the proposition that the legislature may not limit either the nature or...