Oregon Medical Malpractice Laws and Statutory Rules

An introduction to the laws and statutory rules governing medical negligence claims in Oregon.

By , MSLIS · Long Island University

If you've been injured by substandard medical care in Oregon, you might be weighing your options. One of those options could be a medical malpractice lawsuit. While these lawsuits are almost always extremely complex undertakings—making the help of a good medical malpractice attorney a necessity—it can be helpful to understand the basic outlines of what you're getting into before you decide to head to court. In this article, we'll examine some of the most important Oregon medical malpractice laws, including:

  • the state's statute of limitations on filing a medical malpractice claim
  • what you'll need to prove in order to find the defendant (the health care provider you're suing) liable for your injuries, and
  • the statutory limits on the compensation you may be awarded if your claim succeeds.

Oregon's Medical Malpractice Statute of Limitations

Like all states, Oregon has laws on the books that set out specific time limits for filing your lawsuit in the state's civil court system. These laws, called "statutes of limitations," provide different deadlines for different types of lawsuits, but the time limits are always strictly enforced. That means that if you try to file your case after the applicable statute of limitations has expired, the court will most likely toss it out as time-barred—and you will have lost the right to pursue compensation for your injuries. That's why it's so important to understand and comply with the statute of limitations.

Oregon's statute of limitations for medical malpractice claims states that a lawsuit based on "any medical, surgical or dental treatment, omission or operation" must be filed within "two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered." That means that you have two years from the date the underlying medical error occurred, or from the date you knew—or should have known—you were harmed by the health care provider's negligence. But be aware that if you claim that you didn't discover your injuries right away, you have the burden of proving that you couldn't have discovered the medical error any sooner than you did.

Oregon also has what's called a "statute of repose" that applies to medical malpractice lawsuits. This rule states that all medical malpractice lawsuits must be "commenced within five years from the date of the treatment, omission or operation upon which the action is based." This absolute time limit applies even if you didn't know—and couldn't have known—about your injuries during that time. There is one exception to this five-year deadline: In situations where the defendant health care provider has used "fraud, deceit or misleading representation" to hide the malpractice, the "clock" is paused until the fraud or deceit is discovered (or reasonably should have been discovered). At that point the standard two-year deadline applies.

Finally, there are special rules for when the injured patient is a child younger than 18 years of age or a person who has a "disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know." Under those circumstances, the clock is paused ("tolled") for up to five years or for one year after the patient turns 18 or is no longer deemed to have a "disabling medical condition," whichever occurs first.

(Or. Rev. Stat. §§ 12.110, 12.160 (2022).)

What You Need to Prove in a Medical Malpractice Lawsuit in Oregon

As part of tort-reform efforts, many states have passed laws that set out specific procedural rules that patients in medical malpractice cases must follow when filing their lawsuits. In many cases, state law requires a potential plaintiff to file a document called an "affidavit of merit" alongside the complaint that begins the case. Oregon has no such law.

But while there's no state law that requires medical malpractice plaintiffs to provide proof of their claims in a special document at the outset of the case, injured patients still must prove certain things in court in order to hold a health care provider liable for medical negligence. Oregon courts have held that a plaintiff typically must establish the following elements of medical malpractice:

  • the health care provider had a duty to the injured patient (this generally means that there was a provider-patient relationship at the time of the malpractice and that the provider was obligated follow the accepted "medical standard of care" under the circumstances that led to the lawsuit)
  • the health care provider failed to exercise the appropriate level of care required when treating the patient
  • the patient suffered an injury that is measurable in damages, and
  • that there is a connection between the provider's medical malpractice and the patient's injuries.

In order to prove these elements, you'll most likely need the testimony of at least one qualified medical expert. In Oregon, an expert who is "qualified as an expert by knowledge, skill, experience, training or education" may testify in a medical malpractice case in order to help the jury understand the evidence or determine a fact at issue in the claim. (Or. Rev. Stat. § 40.410 (2022).)

Oregon's Medical Malpractice Damages Caps Apply Only to Wrongful Death Cases

Some states place "caps" (or limits) on the amount of damages that can be awarded to a plaintiff in a successful medical malpractice case. Most states with damage caps limit only noneconomic damages, which include compensation for losses that are hard to place a specific dollar amount on, such as pain and suffering, emotional distress, humiliation, and loss of care, comfort, companionship, and society.

Under Oregon law, noneconomic damages in medical malpractice cases are capped only in cases of wrongful death. In those situations, noneconomic damages are capped at $500,000, regardless of the number of health care providers involved.

Note that economic damages are not capped under Oregon law. Economic damages are "objectively verifiable monetary losses" suffered as a result of the malpractice, including compensation for past and future medical expenses, lost income, lost earning capacity, costs of domestic services, and burial and memorial expenses. There are no limits on the amount of economic damages that can be awarded in a medical malpractice case—even one that involves wrongful death.

(Or. Rev. Stat. §§ 31.705, 31.710 (2022).)

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