I can help you navigate the process of gathering the records necessary to proceed with the investigation of your case. Most providers offer release forms on their websites that can be downloaded, filled out, and then faxed or emailed back to the provider’s office. You will need complete copies of the medical records from the health care provider that you believe was negligent, as well as any other records for treatment of the same condition, and any prior records relating to the same condition or body part. Complete records are more than the visit summaries that you may leave with printed copies of or those you have access to on MyChart or patient portals. Radiology and billing records will need to be requested separately. I can assist in making sure that all pertinent records are obtained and that you are not overcharged in the process.

To file a lawsuit in Oregon, you only have two years from the time that you discovered your claim or from when a reasonable person in your position should have discovered his or her claim. This two-year statute of limitations is the law in the state of Oregon. See ORS 12.110(4). In Oregon, you can not file a lawsuit for a treatment or operation that occurred more than five years ago, unless there was fraud, deceit, or misleading information that prevented you from discovering the claim. See ORS 12.110(4).

These deadlines mean that you cannot delay in contacting an attorney. Investigating a medical malpractice case takes time. Medical records requests can sometimes take several weeks to be processed, depending on the provider, and there must be enough time to have the records reviewed by a medical expert and draft the complaint. Attorneys who handle medical malpractice cases may not be able to take your case if the statute of limitations is quickly approaching and they do not have the time to do what needs to be done. You need to meet with an attorney right away and well in advance of deadlines.

No. OHSU is a public corporation. See ORS 353.020. A lot of people do not know this. To file a civil lawsuit against a public body you must comply with the Oregon Tort Claims Act. See ORS 30.275 (1). Formal notice of the claim must be given to OHSU within 180 days after the loss or injury, or within one year for wrongful death. Formal notice of the claim means a statement that a claim for damages is or will be asserted against the public body or an officer, employee or agent of the public body, a description of the time, place and circumstance giving rise to the claim, and the name of the claimant and the mailing address to which correspondence concerning the claim may be sent. Formal notice must be given by mail or personal delivery, and it must be received within the applicable time period. See ORS 30.275. I can help you with this.

There are four elements that will need to be established to prove a case of medical negligence. First, there must be a physician-patient relationship. Second, you must prove that the practitioner breached the standard of care. What is a breach of the standard of care? It means that the physician failed to act as a reasonably prudent physician in the same or similar circumstances. Oregon law regulates the practice of medicine. See Chapter 677 of the Oregon Revised Statutes.

ORS 677.095 sets forth the duty of care for physicians in Oregon: “A physician licensed to practice medicine or podiatry by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community.” When physicians fall below this expectation, that is failing to meet the standard of care. A breach of the standard of care must be proved by expert testimony, which means that in order to prove your case you will have to retain another physician who practices in the same area to review the medical records and make a determination as to whether the conduct by the physician was not reasonably careful, skillful, or diligent.

If you can establish that a physician breached the standard of care (the first and second elements), you then must be able to prove causation and damages (the third and fourth elements of the claim) — that the harm you suffered was as a result of the negligence of the physician and that you suffered a harm that you would not have suffered otherwise. Proving causation can prove to be a challenge in some complex circumstances.

Your attorney will handle retaining the medical experts necessary to proceed in your case.

While not every case goes to trial, medical malpractice cases are expensive to litigate. Costs can exceed tens of thousands of dollars. The majority of the costs are incurred to pay medical experts to review your medical records and provide their opinions and to testify if the case goes to trial. The amount of the filing fee depends on how much you are seeking, and is usually between $594 and $1,178. See the 2023 Oregon Judicial Department Circuit Court fee schedule. Other anticipated costs include expert medical review, and deposition costs for court reporters and videographers. If you cannot afford to pay the costs of your case, and the costs are advanced on your behalf, they will be deducted from any financial recovery made on your behalf.

I work on a contingency basis, meaning that I earn a percentage of any financial recovery on your behalf. My fee is contingent on making a financial recovery. My fee is one third (33.33%) after filing a lawsuit and increases to 40% if the case goes to trial. I do not charge by the hour or for my time in investigating potential claims. All initial consultations are free of charge to potential clients.

They should, but they do not settle cases voluntarily because it’s the right thing to do. In my experience, insurance companies are not motivated by ethics or fairness. The almighty dollar is what matters to insurance companies, and if they think they can defend the case and refuse to pay you, they will. Insurance companies for physicians vigorously defend medical negligence cases. They have a duty to. All payments made to plaintiffs are reported to the National Practitioner Data Bank. Unfortunately, insurance companies do everything they can to avoid a payment being made as a result of their insured’s negligence, to protect their insured’s professional reputation. These insurance companies pride themselves on making indemnity payments to only 20% of plaintiffs who file civil actions for medical negligence. Here are links to the top insurance corporations who insure physicians and medical care corporations.

 

Med Pro Group

The Doctors Company

Physicians Mutual

Unfortunately, no. The jury will never hear about that. In Oregon, by statute ORS 41.675, all data provided to peer review bodies of health care providers and health care groups is strictly inadmissible in evidence in any judicial proceeding. The public policy behind that is that we want for our medical boards to discipline doctors without fear of that disciplinary decision being used against the physician in court. Further, plaintiffs are entitled to have the facts of their case decided by juries and not the medical board. Plaintiffs’ attorneys cannot introduce evidence that a medical board disciplined the doctor for the care at issue.

No. The ability to pay a judgment is irrelevant to the issues in the case. The jury will not be instructed as to whether the doctor has a million dollars of insurance or five million dollars of insurance. It’s beside the point. The plaintiff’s damages are to be determined without knowledge of how much, if any, insurance is available to pay the claim. The jury is specifically instructed in medical negligence cases that “the jury is not to consider whether any of the parties in this action has insurance or the ability to pay for any liability, loss, damage, or injury. Whether any party has insurance or the ability to pay has no bearing on the issues that you are to decide.”

Click here to go to the Oregon Medical Board website, and look up a provider by their licensee lookup.

You can also send a request for License Verification and Malpractice Report to the OMB for $10.00 with this form. Claims older than 2006 do not appear on the website but are public records available upon request.

Each trial judge decides which jury instructions are appropriate under the law to be given in each particular civil case. Here are some uniform civil jury instructions commonly given to civil juries in Oregon in medical malpractice cases.

Medical negligence litigation is a very specialized niche within the realm of personal injury litigation. While there are many civil litigators in Oregon, there are relatively very few trial lawyers whose practice is focused on medical negligence cases exclusively. Attorneys who do not regularly litigate medical negligence cases will not be familiar with the discovery issues unique to this area of practice and the attorneys who routinely defend these cases. The same three of four large insurance defense firms represent the medical malpractice insurance companies and defend their insureds in Oregon. A general injury attorney will not have experience opposing these firms. There is no substitute for experience, and knowing your enemy is critically important.

Hart Wagner

Keating Jones Hughes

Lindsay Hart