In a unanimous decision, the Oregon Court of Appeals ruled in favor of an 8-year-old boy who suffered severe brain damage while recovering from surgery at OHSU. It allowed Jordaan Clarke to sue the staffers who treated him, but not the hospital itself.

The court upheld a legal protection for OHSU that caps its liability as a public entity to $200,000, but said that the state couldn't constitutionally limit Jordaan's right to a remedy against OHSU's individual employees that might have caused the damage.

This means that attorneys for Jordaan Clarke can go to trial to sue for an estimated $11 million that he will need to care for him over his lifetime.

The case may ultimately change the way OHSU does business if its doctors face the same risks as private practitioners.

When Jordaan was 3-months-old, he had open-heart surgery at OHSU for a congenital heart defect. While recovering at the hospital, Jordaan's breathing tube slipped out of place for 14 minutes. The lack of oxygen left the boy with permanent brain damage. He is now confined to a wheelchair and eats from a feeding tube.

"It's heartbreaking because I love him. He's a special child," said Jordaan's grandmother, Eva Diseth. "He has a reason for being here."

The court was able to uphold OHSU's right to be protected under the Oregon Tort Claims Act (OTCA). The OTCA grants legal protection to public entities under state law in the form of a tort liability cap, designated by the Oregon Legislature as $200,000 for both economic and non-economic damages. Until this ruling, OHSU had used that cap to protect the doctors, nurses and other staff who work for the hospital.

"If nothing, the purpose (of Jordaan's accident) called it to the attention of the government, so others can be helped," Diseth said. "It just means each person is accountable for what they've done."

In a statement issued on Wednesday, OHSU said the court's ruling was unconstitutional. The statement said OHSU would appeal the ruling, which, it believed, would negatively impact all public entities, including cities, school districts and counties.

"The potential financial impact of the ruling to OHSU and to every single public body in Oregon cannot be calculated at this point," the statement read. "But we expect that for public bodies as a whole, the total impact will be in the range of tens of millions to hundreds of millions of dollars."

Previous Reports:
02/08/2006 OHSU liability cap leaves patients in a lurch
01/20/2006 State law shields OHSU from damages