Dennis Powers' guest opinion about personal injury lawsuits in the Mail Tribune Nov. 22, reveals a slanted view, ignoring the body of law currently on the books which controls the very problems he wants to "fix."
My best guess would be that I tried over 3,000 cases as a circuit judge in Jackson and other Oregon counties for more than 40 years. Since my retirement in 1997, I have conducted several hundred arbitrations and mediations. Prior to my retirement, Susan Saladoff appeared in my court, and I found her to be a very competent, thorough and reasonable trial lawyer.
Ah, shame on the big, bad personal injury lawyers who go about suing anybody for anything without restraint and who have driven up the cost of medical malpractice insurance for doctors by their huge malpractice verdicts. We can take some slight comfort in the fact that in most cases, particularly personal injury suits, the poor defendant is a large insurance company who can write off its taxes the high costs of defending its insured.
At least in Oregon, the judicial system has already anticipated frivolous lawsuits. The Oregon Rules of Civil Procedure provide a means by which a party may request the court to dismiss a case which has no merit. If by chance that case goes on through the system, ORS 20.105 provides that attorney fees can be awarded against the party who has brought the frivolous lawsuit.
In my entire career, I had only one plaintiff's verdict against a doctor for malpractice. I have mediated malpractice cases where the only issue was what was the value of the damages to the plaintiff.
How much is a woman's breast worth when it has been removed as a result of a misdiagnosis? How much is a cheek worth when the doctor operated on the wrong side of the face? And, how much is too much when you have a diseased lung, and the doctor removes your good lung?
Now, what about punitive damages? In Oregon, punitive damages cannot even be included in a claim until the court has had an opportunity to examine the claim and rule that it has some merit. To have merit, in a claim for punitive damages, the defendant must have acted "... with malice or ... a reckless and outrageous indifference to a highly unreasonable risk of harm and ... with a conscious indifference to the health, safety and welfare of others" (ORS 31.730). The standard of proof is by clear and convincing evidence, which is higher than the standard for most civil cases, which is a preponderance of the evidence.
Punitive damages are rare and subject to reduction by the court if excessive. Oregon's statutes provide that in the event of a punitive damage award, 60 percent of the award goes to the Oregon Criminal Injuries Compensation Account and only 40 percent goes to the plaintiff, and in no event can an attorney be paid more than 20 percent of the amount of the award.
American Bar Association studies reflect that in the states which have embraced tort reform, there has been little or no reduction in the costs of medical malpractice insurance. And, keep in mind that the huge punitive damage verdicts which get our attention are returned by juries, not the judges or the lawyers. The people of the community must feel that the defendant needs to be punished, or they would not impose such large sums.
I have great respect for both the plaintiff and defense lawyers who have appeared before me. They have a job to do, and they do it to the best of their abilities.
I certainly am not saying that our judicial system does not need change. There are many areas in which it can be improved. What I am saying is that we should look at all sides of the issue and be well educated in the real problems before we start fixing things. Ask the person who is confined to a long life in a wheelchair and requires constant care whether we need caps on tort recoveries and general tort reform.
Loren Sawyer is a retired Jackson County circuit judge.