Voters in November could elect to pass a measure that would amend Oregon's constitution to impose a limit on non-economic damages that may be claimed in malpractice suits.

In 1999, Oregon's Supreme Court overturned $500,000 statutory limits on non-economic damages in many forms of civil suits, including malpractice suits, that had been in place since 1987. Measure 35 would re-impose that cap, and supporters say the cap could help pull Oregon out of its health care crisis.

"It's common sense," said Rick Rice, public relations director for Good Shepherd Medical Center in Hermiston. "It's just a moderate, reasonable way to deal with this crisis."

The Supreme Court ruled in 1999 that the Legislature did not have the constitutional authority to enact the non-economic damage award cap.

Since the cap was lifted, malpractice insurance rates have skyrocketed, forcing some physicians to cut services and even leave the practice altogether. Lawsuits and the resulting costs to doctors are spiraling out of control due to the unpredictability in the insurance market.

"If this measure does not pass, we will continue to see malpractice insurance rates raise significantly each year," said Larry Davy, administrator for Wallowa Memorial Hospital in Enterprise.

Davy noted that malpractice insurance rates at Wallowa Memorial soared from $70,000 in 2003 to $167,000 this year, and that's with reduced services for patients. If the hospital would have kept the same services as it had with the $70,000 insurance rate, it would have had to pay $300,000 for those services this year.

"Before, when the cap was in effect, it did control the cost of insurance," Davy said.

Malpractice lawsuits have become multi-million dollar suits since the cap was lifted in 1999. According to the Oregon Medical Association, the average cost of defending a physician professional liability claim has risen 121 percent and at least eight liability insurance carriers have withdrawn from the Oregon market.

According to Jeffrey Drop, president of St. Anthony Hospital in Pendleton, professional liability insurance costs for the hospital have increased 27 percent in the last three years.

"This puts an incredible burden on health care providers," Drop said. "It could drive doctors out of business - and the smaller the town, the worse it could be."

One myth is that Measure 35 will limit awards for economic damages - it will not. According to the explanatory statement for Measure 35 as submitted to the state Elections Division, "Ballot Measure 35 does not limit the recovery of economic damages."

Staci Buchanan, communications director for St. Anthony Hospital, said non-economic damages - which the measure limits awards - are defined as pain, mental suffering, emotional distress, inconvenience and the interference with normal and usual activities, apart from employment.

"A yes vote for Measure 35 won't take away a patient's right to their day in court," Buchanan said. "It still lets juries award full compensation for economic damages, including medical expenses and loss of past and future earnings."

One of the most hard-hit areas of health care in Eastern Oregon due to high rates of malpractice insurance has been obstetrics. In Hermiston, for example, seven family practice physicians have stopped delivering babies due to the high costs of insurance.

Currently, Hermiston has just four family practice physicians with obstetrics training who can perform caesarian sections and two obstetricians. The situation is even worse in Wallowa County, where obstetrics is at the highest risk for malpractice suits since Wallowa Memorial does not perform major surgeries like neurosurgery.

"If the measure doesn't pass, at some point, physicians wont be able to do OB," Davy said, noting that the next closest hospital for patients in Wallowa County and eastward is Grande Ronde Hospital in La Grande, some 70 to 80 miles away. "You can have some serious problems in an hour and a half drive if you're having a baby."

Rice said that while he's not sure passage of the measure will mean an increase in obstetrics providers in the Hermiston area, he's hoping that it "at least won't mean any less."

"There are doctors out there who would like to start delivering babies again," Rice said.

However, if the measure does pass, there's a good chance malpractice insurance premiums will not increase.

"There's no way to predict what premiums will do, but they shouldn't increase at the rate they have been anymore," Davy said. "Rapid increases should slow down."

Voters can look for Measure 35 on the Nov. 2 ballot.

Contact EO reporter Casey White at (800) 522-0255 or (541) 966-0834, or by e-mail at

The Basics of Measure 35:

• Would restore a $500,000 cap on non-economic damages that may be claimed in certain civil lawsuits, including medical malpractice.

• The measure applies to claims made by injured patients and legal representatives of injured patients, including persons claiming loss of consortium.

• The limitation applies to claims based on negligence or recklessness, but does not apply to claims based on intentional injury, nor does it limit claims for wrongful death.

• The measure does not limit the recovery of economic damages in a lawsuit.

• The measure does not require implementing legislation and applies to all actions filed on or after Jan. 1, 2005.

Measure 35 Explanatory Statement, Oregon Secretary of State

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