## Facts

- In 1998, infant Jordaan Michael Clarke underwent heart surgery at Oregon Health Sciences University (OHSU) to repair a congenital defect.
- After surgery, Clarke suffered prolonged oxygen deprivation and sustained permanent, profound brain damage and total disability.
- Clarke (through a guardian ad litem) sued OHSU and several individual medical providers involved in his care for negligence, seeking over $17 million in economic and noneconomic damages.
- OHSU admitted negligence and that Clarke’s damages exceeded statutory limits, but asserted the Oregon Tort Claims Act (OTCA) limited total recovery to $200,000.
- The OTCA provisions at issue (1) made the public body the exclusive defendant for employees’ work-related torts and (2) capped recoveries against the public body (here, $100,000 economic plus $100,000 noneconomic).

## Issues

1. Whether applying the OTCA damages cap to claims against OHSU violates Article I, section 10 of the Oregon Constitution (Remedy Clause).
2. Whether the OTCA’s exclusive-remedy provision, combined with the OTCA cap, violates the Remedy Clause as applied by eliminating common-law negligence claims against individual public employees without an adequate substitute remedy.

## Decision

- The Oregon Supreme Court held the OTCA cap could be applied to OHSU without violating the Remedy Clause.
- The Court held the OTCA exclusive-remedy provision was unconstitutional as applied to Clarke’s claims against the individual medical providers when paired with the $200,000 cap.
- The Court affirmed the Court of Appeals’ disposition: capped recovery against OHSU remained available, and claims against individual defendants were not barred by the OTCA exclusive-remedy provision as applied.

## Legal Principles

- Remedy Clause analysis asks (1) whether the claim existed at common law in 1857 and, if legislative change limits or abolishes that claim, (2) whether the substitute remedy is constitutionally adequate rather than merely nominal.
- The legislature may modify the form and measure of recovery for common-law claims, but it may not eliminate a common-law remedy without providing a substantial substitute.
- If a public entity would have been protected by sovereign immunity at common law, a statutory waiver of immunity subject to a damages cap can be constitutional because it provides a limited remedy where none previously existed.
- Negligence actions against individual tortfeasors were recognized at common law; eliminating employee liability and substituting only a severely capped public-body claim can violate the Remedy Clause when the substitute recovery is a small fraction of proven damages.

## Conclusion

The Oregon Supreme Court upheld the OTCA damages cap as applied to OHSU because OHSU would have been immune at common law, but ruled that barring suit against individual medical providers while limiting recovery to $200,000 failed to provide an adequate substitute for common-law negligence remedies and therefore violated the Oregon Remedy Clause as applied.


Clarke v. Or. Health Scis. Univ., 343 Or. 581, 175 P.3d 418 (2007)