From the Desk of Jeff Eberhard: Insurers should be aware that when a physician or other medical professional directly injures a child during delivery, the noneconomic damages cap is inapplicable. In the way of noneconomic damages, the plaintiff gets as much as a jury awards.
Claims Pointer: The remedies clause in the Oregon Constitution gives everyone a remedy for injury to their person, but an Oregon statute limits some civil action damages to $500,000. The Oregon Supreme Court held that when a defendant’s negligence directly causes physical injury to a child during delivery, the noneconomic damages cap violates the Oregon Constitution.
Klutschkowski v. Peacehealth, —P.3d—, 2013 WL 5377913 (September 26, 2013).
When Bobbi Klutschkowski gave birth to her third child in 1999, the delivery was complicated by shoulder dystocia, which occurs when the baby’s shoulder becomes stuck behind the mother’s pubic bone during delivery. The child was unharmed, and the doctor did not inform Bobbi that there were any complications during the delivery.
Women who have shoulder dystocia complications during the birth of one child are likely to have them during the birth of any subsequent children, and shoulder dystocia can lead to severe injury to the child. As such, the standard of care in the medical profession requires a doctor to inform a mother of the increased risk for subsequent births and also to advise the mother to consider a cesarean section to reduce or avoid the potential risk.
In 2004, when Bobbi prepared to give birth to her son Braedon, she was not informed of the increased risk that would come with vaginal delivery. During her son’s delivery at Oregon Medical Group (“OMG”), he suffered shoulder dystocia, resulting in a permanently disabling brachial plexus injury. The injury could have been avoided by a cesarean section delivery.
The Klutschowskis sued OMG, alleging malpractice, and the jury awarded over $1 million in noneconomic damages. OMG moved to apply the noneconomic damages cap, and the trial court denied the motion. OMG appealed. The Oregon Court of Appeals found that the application of the noneconomic damages cap did not violate the Oregon Constitution.
The Oregon Supreme Court held that the application of the noneconomic damages cap violated Article I, section 17 of the Oregon Constitution. Article I, section 17, guarantees the right to a jury trial in civil cases to which the right to a jury trial was customary in 1857. The Court found that causes of action for medical malpractice predated the state constitution. Consequently, medical malpractice plaintiffs are entitled to a determination of all fact issues, including the issue of damages, by a jury. In the Oregon Supreme Court, OMG argued that actions for prenatal injuries did not exist at the time the Oregon Constitution was adopted. The Klutschkowskis argued that the claim was not for prenatal injuries that occurred to a fetus, but rather, for negligence in handling Braedon after delivery commenced. At the time the injuries occurred, Braedon was a child, and he was able to maintain his own cause of action for negligence.
In denying application of the noneconomic damages cap, the Court noted that the issue was whether the Klutschkowskis alleged an injury protected by the remedies clause. Specifically, whether the cause of action was recognized in 1857, before Oregon adopted its Constitution. If the cause of action was recognized at that time, Article 1, section 17, guarantees a jury trial in civil actions for which the common law provided a jury trial. Causes of action for medical malpractice were recognized at common law. As such, the application of ORS 31.710, the statute mandating the noneconomic damages cap, violated Article 1, section 17.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.