If you think you have a medical malpractice claim based on a health care provider's negligence or carelessness in Oregon, you might be thinking of filing a medical malpractice lawsuit. An Oregon medical malpractice plaintiff might not need to jump through quite as many procedural "hoops" compared to plaintiffs in other states, but there are plenty of thorny legal issues to contend with.
One of your first concerns is making sure you comply with the strict deadline for filing a medical malpractice case in Oregon. Moreover, it helps to understand the elements of "medical negligence"—what you’ll need to prove in order to hold a health care provider liable for harm caused by substandard medical treatment—and the crucial role that an expert witness will likely play in your Oregon medical malpractice case. Read on for the details.
Medical Malpractice Statute of Limitations in Oregon
If you're considering a medical malpractice lawsuit in Oregon, at the outset you'll need to understand and follow the statute of limitations as it applies to your situation. A "statute of limitations" is a law that sets a strict time limit on the right to bring a case to civil court. Miss the filing deadline set by this law, and you've almost certainly lost your right to get compensation for your injuries and other losses.
The statute of limitations differs depending on the kind of case you want to file in Oregon. Like a number of other states, Oregon has a specific statute, Oregon Revised Statutes section 12.110, that applies to medical malpractice cases. This law says that a lawsuit "to recover damages for injuries to the person arising from any medical, surgical or dental treatment" must be filed in court within two years.
But when does the two-year "clock" start running for purposes of this deadline? In most situations, it's the date on which the alleged malpractice took place—meaning the date on which the misdiagnosis was made, or the date on which the surgical error was committed, for example.
The "Discovery Rule" in Oregon Medical Malpractice Cases
In some treatment scenarios, it's not always immediately apparent that a health care provider made a mistake, or that the patient was harmed. In Oregon, the law says that the two-year period starts "from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."
It's important to note that if you're relying on this “discovery” rule, you're essentially asking the court to extend the lawsuit filing deadline, and as the plaintiff (the person filing the medical malpractice lawsuit) you bear the burden of showing that you couldn't reasonably have discovered the malpractice before you actually did. Medical malpractice cases are difficult to win, and rules like this are a big reason why.
There is also a larger deadline in Oregon that says "every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based." So, even if you couldn’t have known you were harmed by malpractice during those five years, once they have passed you've lost your right to file a medical malpractice lawsuit in Oregon. The only exception is where the defendant has used "fraud, deceit or misleading representation" to hide the malpractice. In that situation, once the existence of the claim is discovered, the "clock" starts running on the standard two-year deadline.
Extending the Filing Deadline in Oregon
The running of the statute of limitations "clock" may be suspended in Oregon if, at the time the alleged malpractice occurred, the injured patient was under the age of 18 or subject to a mental disability that kept the patient from understanding their rights. But the "clock" can be paused only for five years, or one year after the person turns 18 or the mental disability ends, whichever occurs first.
If no legal exception extends the statute of limitations filing deadline in Oregon, and you miss the applicable time window but you try to file the lawsuit anyway, the court is almost certain to dismiss your case as time-barred. That's a harsh result, and it's also an illustration of the importance of understanding and complying with the statute of limitations.
No "Certificate of Merit" Requirement in Oregon Medical Malpractice Cases
Thanks in part to controversial "tort reform" efforts, in most states, when an injured patient wants to file a medical malpractice lawsuit against a health care provider, the patient (or their attorney) must file a sworn statement—often called a "certificate of merit" or "affidavit of merit"—alongside the civil complaint (the legal document that sets out the allegations against the health care provider).
This sworn statement must typically be prepared by (or be based on consultation with) a qualified medical expert, who has reviewed the details of the plaintiff's case and believes there is substantial evidence of medical negligence—in other words, the expert is of the opinion that the lawsuit has "merit."
Oregon, though, has no "certificate of merit" requirement.
What a Medical Malpractice Plaintiff Must Prove in Oregon
First, it’s important to note that not every unfavorable result or misstep in treatment will lead to a viable medical malpractice lawsuit—most won’t, in fact.
There is no specific Oregon law that lays out what must be established in order to hold a health care provider liable for medical negligence, but in general, if you’re filing a medical malpractice lawsuit in Oregon, as the plaintiff, you have the burden of establishing:
- that a provider-patient relationship existed between you and the defendant (this element usually isn’t in dispute)
- the appropriate “standard of care” under the circumstances (the skill and attention that a similarly trained health care provider, in the same medical community as the defendant, would have provided to you)
- how the provider’s conduct (including their decisions, actions, and/or their failure to act) fell below that accepted medical standard of care and amounted to negligence, and
- that there is a causal connection between the provider’s medical negligence and quantifiable harm to you.
For medical malpractice lawsuits in Oregon, as in every state, proving complex elements like the "standard of care" and deviation from that standard will almost always require the testimony of a qualified medical expert. (Learn more about proving medical malpractice.)
Expert Witnesses in Oregon Medical Malpractice Cases
Perhaps the most relevant statute on expert witness testimony in an Oregon medical malpractice lawsuit can be found at Oregon Revised Statutes section 40.410, which says that when "scientific, technical, or other special knowledge" will "assist the trier of fact"—i.e. the jury in a medical malpractice lawsuit, who is trying to determine whether a health care provider’s error amounted to negligence—a qualified expert witness may offer his or her opinion on key issues of liability and damages.
Most Oregon medical malpractice lawsuits will involve the input and testimony of multiple medical experts—retained by both the injured patient and the health care provider being sued. Because of this, a medical malpractice trial is offered referred to as a "battle of experts." But it's important to note that expert testimony might not be a requirement in Oregon if the medical malpractice lawsuit hinges on "routine" treatment issues that are within the jury's common knowledge, or if the medical error was obvious (a surgical instrument was left inside the patient, for example).
Caps on Damages in Oregon Medical Malpractice Cases
A number of states have laws on the books that "cap" (limit) the amount of compensation ("damages") that a successful plaintiff can receive after winning a lawsuit against a health care provider. Most of these states limit noneconomic medical malpractice damages. Noneconomic damages typically include compensation for things like emotional distress, pain and suffering, humiliation, and other more subjective consequences of the malpractice.
In Oregon, though, the medical malpractice damages cap applies only to noneconomic damages in wrongful death cases that stem from medical malpractice. A wrongful death case is brought by the heirs or another representative of the deceased person, and noneconomic damages in such cases are usually intended to compensate for both the deceased's pre-death pain and suffering and the emotional losses suffered by the heirs or family members bringing the wrongful death lawsuit. That cap is set at $500,000. (See Oregon Revised Statutes sections 31.705 and 31.710 for details.)
It's important to note that Oregon does not cap economic damages in medical malpractice cases—even if they involve wrongful death. That means there is no limit on the amount of compensation that can be awarded for past and future medical treatment, lost income or lost earning capacity, or other types of quantifiable harm caused by the malpractice.
Getting Help With Your Oregon Medical Malpractice Case
Medical malpractice cases can be challenging for many injured patients, in no small part due to the complexities of the filing deadlines and the crucial role of experts in proving the malpractice. That's why, if you want to improve your chances of winning a medical malpractice lawsuit, it's important to choose a medical malpractice attorney who's a good fit for you. An experienced Oregon medical malpractice lawyer should be able to evaluate your situation, find the right expert for your case, and help you navigate the legal complications involved in these lawsuits. In some situations, if the filing deadline is near, and the attorney believes firmly in your case, the lawsuit will be filed simply to make sure your rights and options are preserved, while the two sides discuss settling the medical malpractice case out of court.