Oregon Medical Malpractice Law - An Overview
By Aaron Larson
Important Notice: The following overview of Oregon's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Oregon's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Oregon.
- What Is Medical Malpractice
- Limits on Malpractice Damages
- Collateral Source Rule
- Rules for Expert Witnesses
- Joint and Several Liability
- Statute of Limitations
- Limits on Attorney Fees
- Additional Rules
- Why Use A Malpractice Lawyer
Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition;
Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.
Punitive damages are not available if a physician is found to have been acting within the scope of his or her duties, without malice.
Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in Oregon, there is a discretionary offset by the court after judgment, except for benefits that the plaintiff is obligated to repay, life insurance or death benefits, insurance benefits for which the plaintiff paid premiums, disability benefits, retirement or pension benefits, or Social Security benefits.
Oregon does not impose special restrictions on expert witness testimony in medical malpractice cases.
Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. Oregon has abolished joint and several liability for medical malpractice cases, such that defendants are liable for damages only in proportion to their degree of fault for causing the plaintiff's injury.
Medical malpractice actions must be commenced within two years from the date of the wrongful act or omission, or within two years of the date the injury was or reasonably should have been discovered. No medical malpractice action may be filed more than five years from the date of the act or omission giving rise to the injury, regardless of when the injury is discovered. Under Oregon law, the statute of limitations begins to run on a minor's eighteenth birthday, but the five year statute of repose remains applicable such that no claim may be filed more than five years from the date of the act or omission giving rise to the injury.
The attorney fee for a punitive damages award may not exceed 20% of the award.
Unless the case is settled or the parties voluntarily waive alternative dispute resolution in writing, all cases must be submitted to some form of alternative dispute resolution within 270 days of the date of filing.
Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.
Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.
Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.