CLARKE v. OHSU

(CC 0005-05116; CA A124560; SC S053868).

175 P.3d 418 (2007)

343 Or. 581

Jordaan Michael CLARKE, a minor, by his guardian ad litem, Sari Clarke, Respondent on Review, v. OREGON HEALTH SCIENCES UNIVERSITY, a public corporation; Mustafa Adnan Cobanoglu, M.D.; John David Blizzard, M.D.; Sanjeev K. Sharma, M.D.; Steven A. Fiamengo, M.D.; Betsy E. Soifer, M.D.; Jennifer Stewart, R.R.T., and Ana Wilson, R.N., Petitioners on Review, and Veerappa K.M. Reddy, M.D., Defendant, and State of Oregon, Intervenor on Review.

Supreme Court of Oregon.

Decided December 28, 2007.


Attorney(s) appearing for the Case

William F. Gary, Harrang Long Gary Rudnick PC, argued the cause for petitioners on review. With him on the briefs were Sharon A. Rudnick, Jerome Lidz, and Susan D. Marmaduke, Portland.

Kathryn H. Clarke, argued the cause for respondent on review. With her on the briefs were William A. Gaylord, Linda K. Eyerman, Todd A. Bradley, and Gaylord Eyerman Bradley, P.C., Portland.

Janet A. Metcalf, Assistant Attorney General, filed a brief on behalf of intervenor on review State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, Salem.

Roy Pulvers, Lindsay, Hart, Neil & Weigler, LLP, Portland, filed briefs on behalf of amicus curiae Port of Portland.

Janet A. Metcalf, Assistant Attorney General, filed a brief in support of petition for review on behalf of amicus curiae State of Oregon.

Thomas E. Cooney, Paul A. Cooney, Lake Oswego, and David J. Madigan, filed a brief in support of petition for review on behalf of amicus curiae Oregon Medical Association.

David C. Landis, Portland, filed a brief on behalf of amicus curiae Oregon Medical Association.

Linda Meng, Harry Auerbach, Portland, Paul Snider, Agnes Sowle, Portland, Dori M. Brattain, Mark B. Comstock, Salem, James M. Brown, and Ronald W. Downs, filed briefs on behalf of amici curiae League of Oregon Cities, Association of Oregon Counties, Multnomah County, Oregon School Boards Association, Oregon Small Schools Association, Oregon Association of School Business Officials, Inc., Confederation of Oregon School Administrators, and Special Districts Association of Oregon.

Mark S. Rauch, Salem, filed a brief on behalf of amicus curiae City County Insurance Services.

Robyn E. Ridler, Barbee B. Lyon, Tonkon Torp LLP, Portland, filed a brief on behalf of amicus curiae Oregon Business Association.

Maureen Leonard, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Lawrence Wobbrock, Portland, and Jeffrey R. White, Washington D.C., filed a brief on behalf of amicus curiae American Association for Justice.

Before DE MUNIZ, Chief Justice, GILLETTE, DURHAM, BALMER, KISTLER and WALTERS, Justices.


DE MUNIZ, C.J.

In this case, we address whether the Oregon Tort Claims Act (OTCA), specifically ORS 30.265(1) and ORS 30.270(1), as applied to this case, violates the Remedy Clause of Article I, section 10, of the Oregon Constitution. ORS 30.265(1) provides, in part:

"The sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification...

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