S053868, Opinion — Clarke v. OHSU

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Argued and submitted January 9, decision of Court of Appeals affirmed; judgment
of circuit court reversed and case remanded to circuit court for further proceedings
December 28, 2007

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.
(CC 0005 05116; CA A124560; SC S53868)
175 P3d 418

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CJS, Constitutional Law § 1428.

On review from the Court of Appeals .*

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

\* Appeal from Multnomah County Circuit Court, Henry Kantor, Judge. 206
Or App 610, 138 P3d 900 (2006).

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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, 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, Paul Snider, Agnes Sowle,
Dori M. Brattain, Mark B. Comstock, 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 .**

** Linder, J., did not participate in the consideration or decision of this case.

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DE MUNIZ, C. J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed and the case is remanded
to the circuit court for further proceedings.

Balmer, J., concurred and filed an opinion in which
Kistler, J., joined.

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# 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, employ-
ees or agents of a public body acting within the scope of
their employment or duties and eligible for representation
and indemnification under ORS 30.285 or 30.287 shall be
an action against the public body only. The remedy pro-
vided by ORS 30.260 to 30.300 is exclusive of any other
action or suit against any such officer, employee or agent of
a public body whose act or omission within the scope of the
officer's, employee's or agent's employment or duties gives
rise to the action or suit. No other form of civil action or suit
shall be permitted. If an action or suit is filed against an
officer, employee or agent of a public body, on appropriate
motion the public body shall be substituted as the only
defendant."

ORS 30.265(1) (emphases added). ORS 30.270(1), in turn,
limits the damages recoverable against any public body to:

"(a) $50,000 to any claimant for any number of claims
for damage to or destruction of property, including conse-
quential damages, arising out of a single accident or
occurrence.

"(b) $100,000 to any claimant as general and special
damages for all other claims arising out of a single accident
or occurrence unless those damages exceed $100,000, in
which case the claimant may recover additional special
damages, but in no event shall the total award of special
damages exceed $100,000.

"(c) $500,000 for any number of claims arising out of a
single accident or occurrence."

ORS 30.270(1) (emphasis added). Article I, section 10, of the
Oregon Constitution states:

"No court shall be secret, but justice shall be adminis-
tered, openly and without purchase, completely and with-
out delay, and every man shall have remedy by due course

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of law for injury done him in his person, property, or
reputation."

In the recent case of Jensen v. Whitlow, 334 Or 412,
51 P3d 599 (2002), this court rejected a facial challenge to
ORS 30.265(1) under Article I, section 10, id. at 421, but
declined to decide an "as-applied" challenge, id. at 415-16.
We now address such an "as-applied" challenge and hold that
the application of ORS 30.265(1) and ORS 30.270(1) in this
case violates Article I, section 10.

## I. BACKGROUND AND PROCEDURAL HISTORY

We take the following facts from the pleadings.
Because the trial court granted judgment on the pleadings
pursuant to ORCP 21 B,1 this court assumes the facts in the
pleadings to be true. Sager v. Mcclendon, 296 Or 33, 35, 672
P2d 697 (1983).

Plaintiff Jordaan Clarke was born in February 1998
at Oregon Health and Science University (OHSU) with a con-
genital heart defect. He was admitted to OHSU in May 1998
for the surgical repair of that condition. Following surgery,
plaintiff was placed in a surgical intensive care unit. While in
that unit, plaintiff suffered prolonged oxygen deprivation
causing him permanent brain damage.

Plaintiff's brain damage was a direct result of the
negligence of OHSU and certain of its employees and agents.
Plaintiff is totally and permanently disabled. His expenses
for total life and health care will amount to $11,073,506, the
loss of his future earning capacity is $1,200,000, and his
noneconomic damages are $5,000,000.

In 2001, plaintiff brought this action against OHSU
and against the individuals who treated him.2 Pursuant to
ORS 30.265(1), defendants moved to substitute OHSU as the
sole defendant in the action. The trial court granted the

1 ORCP 21 B states: "After the pleadings are closed, but within such time as
not to delay the trial, any party may move for judgment on the pleadings."

" The "individual defendants" are Mustafa Cobanoglu, MD; John Blizzard,
MD; Sanjeev Sharma, MD; Steven Fiamengo, MD; Betsy Soifer, MD; Jennifer
Stewart, RRT; and Ana Wilson, RN. "Defendants," in this opinion, includes the
individual defendants. "OHSU" refers only to Oregon Health and Science
University.

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motion, and plaintiff filed a second amended complaint nam-
ing only OHSU as defendant. In its answer, OHSU admitted
that it was negligent in one or more of the ways alleged by
plaintiff and that its negligence resulted in permanent injury
to plaintiff. OHSU also admitted that "plaintiff sustained
economic and noneconomic damages in excess of the mone-
tary limitations of the Oregon Tort Claims Act as a result of
the injuries caused by the negligence of OHSU."

OHSU moved for judgment on the pleadings pursu-
ant to ORCP 21 B, contending that the trial court should
enter judgment in favor of plaintiff and against OHSU in the
amount of $200,000, OHSU's maximum liability under ORS
30.270(1). The trial court granted OHSU's motion and
entered judgment against OHSU in the amount of $200,000.

Plaintiff appealed, challenging the substitution of
OHSU for the individual defendants and arguing that the
trial court's entry of judgment in the amount of $200,000
denied him the right to a remedy in violation of Article I, sec-
tion 10, of the Oregon Constitution, as well as the right to a
jury trial under Article I, section 17.3 The Court of Appeals
rejected plaintiff's Article I, section 10, argument as to his
claim against OHSU because, it concluded, OHSU would
have been immune from liability at common law. Clarke v.
OHSU, 206 Or App 610, 615-22, 138 P3d 900 (2006). That
court, for the same reason, rejected plaintiff's Article I, sec-
tion 17, argument as to OHSU. Id. at 622-23.

The Court of Appeals, however, accepted plaintiff's
Article I, section 10, argument with respect to the substitu-
tion of OHSU as the sole defendant under ORS 30.265(1). Id.
at 623-34. Plaintiff argued that, because, at common law in
1857, he would have had a cause of action against the
employees of OHSU, Article I, section 10, permits the legis-
lature to abolish that remedy only if it provides an adequate
substitute remedy. Id. at 623-24. Plaintiff further argued
that, because the limited recovery against OHSU was not an
adequate substitute remedy in this case, ORS 30.265(1) vio-
lated Article I, section 10. Id. at 624. The court agreed that

3 Article I, section 17, of the Oregon Constitution, provides: "In all civil cases,
the right of Trial by Jury shall remain inviolate."

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the OTCA did not provide a constitutionally adequate rem-
edy in this case, explaining that "recovery of less than two
percent of one's economic damages-particularly given the
nature of the injuries alleged-is a remedy 'incapable of
restoring the right that has been injured.'" Id. at 626 (quot-
ing Smothers v. Gresham Transfer, Inc., 332 Or 83, 119-20,
23 P3d 333 (2001)). The court concluded that, as applied to
this case, ORS 30.265(1) violated Article I, section 10. Clarke,
206 Or App at 633. The court reversed the trial court's judg-
ment and remanded with instructions to reinstate the claims
against the individual defendants.4 Id. at 634.

Defendants sought review in this court, challenging
the Court of Appeals' conclusion that in this case the OTCA
does not provide a constitutionally adequate substitute rem-
edy as required under Article I, section 10. For his part,
plaintiff also challenges the Court of Appeals' conclusion
regarding his Article I, section 10, claims against OHSU; spe-
cifically, plaintiff takes issue with the Court of Appeals' con-
clusion that OHSU would have been entitled to sovereign
immunity at common law. We allowed review to address the
important issues concerning the adequacy of the OTCA rem-
edy under Article I, section 10.5

## II. DISCUSSION

As noted earlier, the primary issue in this case is
whether ORS 30.265(1) and ORS 30.270(1), as applied to
facts of this case, violate Article I, section 10. We begin with
an overview of the OTCA, then turn to an overview of Article
I, section 10, and then analyze the issue at hand.

### A. Overview of the OTCA

Before 1967, public bodies were immune from tort
liability. Smith v. Pernoll, 291 Or 67, 69, 628 P2d 729 (1981).
A person injured by the negligence of a public employee act-
ing within the scope of his or her employment could pursue
an action against the employee, but not against the public
employer. See Krieger v. Just, 319 Or 328, 331-32, 876 P2d

4 Because the court agreed with plaintiff's Article I, section 10, argument, the
court declined to reach plaintiff's Article I, section 17, argument regarding the
claims against the individual defendants. Clarke, 206 Or App at 634.

5 This court permitted the state to intervene on review.

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754 (1994) (citing Ogle v. Billick, 253 Or 92, 453 P2d 677
(1969)). In 1967, the legislature enacted the OTCA, which
partially waived immunity for public bodies. Jensen, 334 Or
at 416-17. The 1967 version of the OTCA included a mone-
tary limitation on the state's liability, Or Laws 1967, ch 627,
§ 4, but did not alter the liability of public officers, employees,
or agents. Jensen, 334 Or at 417. Those individuals, there-
fore, remained personally liable for torts committed within
the course and scope of their employment. Id.

In 1975, the legislature amended the OTCA. The
1975 version required that public bodies indemnify officers,
employees, and agents against tort claims "arising out of an
alleged act or omission occurring in the performance of duty."
Jensen, 334 Or at 417 (internal quotation marks and cita-
tions omitted); Or Laws 1975, ch 609, § 16(1). Additionally,
the legislature extended the limitation on damages to claims
against officers, employees, and agents of all public bodies.
Jensen, 334 Or at 417; Or Laws 1975, ch 609, § 13.

In 1991, the legislature again revised the OTCA. Or
Laws 1991, ch 861, § 1. That revision added language to ORS
30.265(1) that eliminated entirely any claim against any offi-
cer, employee, or agent for their work-related torts. Jensen,
334 Or at 417. Pursuant to the 1991 amendments, the sole
cause of action available for torts committed by public offi-
cers, employees, or agents is an action against the public
body. Or Laws 1991, ch 861, § 1. After that amendment, ORS
30.265(1) now requires that, if an action is filed against a
public officer, employee, or agent, the public body "shall be
substituted as the only defendant." That substituted claim
against the public body is subject to the OTCA's damages lim-
itations. ORS 30.265(1); ORS 30.270(1); Jensen, 334 Or at
417. The 1991 amendments were added at the request of the
state, which asserted three reasons for the requested change.
Testimony, House Judiciary Committee, HB 3520, May 13,
1991, Ex E (statement of Jack Landau, Deputy Attorney
General). First, because the law provided indemnification for
state officers, naming the officers as parties "serve[d] no pur-
pose." Id. Second, some claimants had argued that the limi-
tation on the liability of the state did not apply to the liability
of individuals; therefore, the state sought to "plug that loop-
hole." Id. Finally, the state noted that "a lot of resources were

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spent" litigating which state officials are properly named in
any given lawsuit. Id. Here, as in Jensen, the 1991 revision
frames the issues in this case.

### B. Overview of Article I, section 10

We begin our overview by again quoting the text of
Article I, section 10:

"No court shall be secret, but justice shall be adminis-
tered, openly and without purchase, completely and with-
out delay, and every man shall have remedy by due course of
law for injury done him in his person, property, or
reputation."

(Emphasis added.) In Priest v. Pearce, 314 Or 411, 415-16,
840 P2d 65 (1992), this court set forth a methodology for
interpreting provisions of the Oregon Constitution. That
methodology requires an examination of the text of the pro-
vision, the history of the provision, and the case law concern-
ing the provision. Id. This court applied that methodology to
the second clause of Article I, section 10, in Smothers v.
Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001).

In Smothers, the court first examined the text of
Article I, section 10. Smothers, 332 Or at 91-94. The court
noted that the second clause of Article I, section 10, by using
the word "shall," affirmatively mandated that a remedy by
due course of law be available in the event of injury to rights
respecting person, property, or reputation. Id. at 91. The
court also noted that contemporaneous dictionaries indicated
that "remedy" referred "both to a process through which a
person may seek redress for injury and to what is required to
restore a person who has been injured." Id. at 92. However,
the court concluded that "no definitive picture of the scope or
effect of the remedy clause emerges" from examining only the
text of the clause. Id. at 94.

The court then turned to the historical circum-
stances of the provision. Id. The Remedy Clause, the court
explained, can be traced to Edward Coke's commentary on
the second sentence of Chapter 29 of the Magna Carta of
1225. Id. The translation of Chapter 29 provides:

"No freeman shall be taken, or imprisoned, or be disseised
of his freehold, or liberties, or free customs, or be outlawed,

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or exiled, or any otherwise destroyed; nor will we not pass
upon him, nor condemn him, but by lawful judgment of his
peers, or by the law of the land. We will sell to no man, we
will not deny or defer to any man either justice or right."

Id. at 95 (quoting Edward Coke, The Second Part of the
Institutes of the Laws of England, 45 (1797)) (internal quota-
tion marks omitted). According to Coke's commentary on that
chapter, the second sentence evolved to a guarantee that
every subject had a remedy by the course of law for injury to
goods, land, or person. Smothers, 332 Or at 96-97. That guar-
antee made its way to the American colonies through, among
other things, Coke's commentary on the English common
law. Id. at 103-04. The court summarized the results of its
historical inquiry:

"In sum, when the Oregon Constitutional Convention
convened in 1857, courts and commentators had provided
considerable insight into the background and meaning of
remedy clauses in state declarations or bills of rights. Those
cases and commentaries revealed that the purpose of rem-
edy clauses was to protect 'absolute' common-law rights.
For injuries to those rights, the remedial side of the com-
mon law had provided causes of action that were intended
to restore right or justice. Remedy clauses mandated the
continued availability of remedy for injury to absolute
rights."

Id. at 112.

Finally, the court examined the case law surround-
ing Article I, section 10. Id. at 115-24. Early cases, Smothers
explained, held that "the purpose of the remedy clause is to
save from legislative abolishment those jural rights which
had become well established prior to the enactment of our
Constitution." Id. at 116 (internal quotation marks and cita-
tion omitted). This court's jurisprudence changed course,
however, following a United State Supreme Court decision
that upheld a guest passenger statute facing an Equal Pro-
tection Clause challenge. Id. at 116-17 (discussing Silver v.
Silver, 280 US 117, 50 S Ct 57, 74 L Ed 221 (1929)). There-
after, this court relied on Silver to hold that the Remedy
Clause does not prohibit the legislature from abolishing com-
mon-law rights that existed when the Oregon Constitution
was drafted. Smothers, 332 Or at 117 (discussing Perozzi v.

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Ganiere, 149 Or 330, 345, 40 P2d 1009 (1935)). This court fol-
lowed Silver and Perozzi in subsequent decisions. Smothers,
332 Or at 117-19. In Smothers, however, this court disavowed
the line of cases beginning with Perozzi. It did so because of
Perozzi's erroneous reliance on Silver's interpretation of the
Equal Protection Clause in deciding a Remedy Clause claim,
to the extent that those cases held that the legislature could
abolish absolute rights respecting person, property, or repu-
tation without violating the Remedy Clause. Id. at 118-19.

Instead, Smothers cited with approval cases predat-
ing Perozzi. Id. at 119. Those cases included Mattson v.
Astoria, 39 Or 577, 580, 65 P 1066 (1901), which held that

"[the Remedy Clause] was intended to preserve the com-
mon-law right of action for injury to person or property, and
while the legislature may change the remedy or the form of
procedure, attach conditions precedent to its exercise, and
perhaps abolish old and substitute new remedies, * * * it
cannot deny a remedy entirely."

(internal citations omitted), and Batdorff v. Oregon City, 53
Or 402, 408-09, 100 P 937 (1909), which held unconstitu-
tional a city ordinance that took away a remedy from those
injured by negligent failure to maintain the city streets.
Smothers also looked to an early federal court opinion written
by Judge Matthew Deady, who had been president of the
Oregon Constitutional Convention in 1857, that explained
the meaning of the Remedy Clause as follows:

"[T]he remedy guarantied by [Article I, section 10] is not
intended for the redress of any novel, indefinite, or remote
injury that was not then regarded as within the pale of legal
redress. But whatever injury the law, as it then stood, took
cognizance of and furnished a remedy for, every man shall
continue to have a remedy for by due course of law. * * * If
[a] then known and accustomed remedy can be taken away
in the face of this constitutional provision, what other may
not? Can the legislature, in some spasm of novel opinion,
take away every man's remedy for slander, assault and bat-
tery, or the recovery of a debt?"

Eastman v. County of Clackamas, 32 F 24, 32 (D Or 1887).
Based on those, and other early cases, Smothers concluded
that (1) the Remedy Clause mandates that remedy by due

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course of law shall be available to every person in the event of
injury; (2) "remedy" includes both the remedial process as
well as what is required to restore a right that has been
injured; and (3) "injury" is a wrong or harm for which a cause
of action existed when the drafters wrote the Oregon Consti-
tution in 1857. Smothers, 332 Or at 124.

After reviewing the text, history, and case law as
outlined above, the court in Smothers set forth the following
analysis to be applied to Remedy Clause claims:

"[T]he first question is whether the plaintiff has alleged an
injury to one of the absolute rights that Article I, section 10
protects. Stated differently, when the drafters wrote the
Oregon Constitution in 1857, did the common law of Oregon
recognize a cause of action for the alleged injury? If the
answer to that question is yes, and if the legislature has
abolished the common-law cause of action for injury to
rights that are protected by the remedy clause, then the sec-
ond question is whether it has provided a constitutionally
adequate substitute remedy for the common-law cause of
action for that injury."

Id. at 124. We now apply the Smothers analysis to plaintiff's
arguments under Article I, section 10.

### C. Plaintiff's claim against OHSU

Under Smothers, the first issue we must address is
whether the common law would have recognized plaintiff's
negligence claim against OHSU. OHSU contends that plain-
tiff would not have had a claim against it, because OHSU
would have been entitled to sovereign immunity under the
common law of Oregon. If OHSU would have been entitled to
sovereign immunity at common law, then the OTCA's limi-
tation of a claim against OHSU would not violate Article I,
section 10, because the common law would not have recog-
nized a cause of action against OHSU for the injury alleged.
See Hale v. Port of Portland, 308 Or 508, 518, 783 P2d 506
(1989) (holding that a statute that abolishes or limits a claim
against a public entity does not violate Article I, section 10).
We conclude that OHSU would have been entitled to sover-
eign immunity at common law because, among other rea-
sons, OHSU is a state-created entity that performs functions
traditionally performed by the state.

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As previously noted, the Court of Appeals concluded
that OHSU would have been immune from liability at com-
mon law and therefore rejected plaintiff's Article I, section
10, argument regarding OHSU. Clarke, 206 Or App at 622.
The court reasoned that "a plaintiff's remedies against a pub-
lic body created by the state to perform functions on behalf of
the state would have been understood by the drafters [of the
Oregon Constitution] to have been entirely dependent on the
will of the legislature." Id. at 618. The Court of Appeals con-
cluded that OHSU was such a public body because, according
to the text of the statute creating it, OHSU is a state-created
public corporation, which performs governmental functions.
Id. at 621-22. The court therefore held that, because plaintiff
would have had no absolute right to a common-law action
against OHSU, plaintiff's claim against OHSU was not pro-
tected by Article I, section 10. Id. at 622. We now address
plaintiff's challenge to that conclusion.

"Our Constitution is framed on the premise that the
state is immune from suit * * *. " Vendrell v. School District
No. 26C et al, 226 Or 263, 278, 360 P2d 282 (1961). That
premise is embodied in Article IV, section 24, of the Oregon
Constitution, which provides, in relevant part, "Provision
may be made by general law, for bringing suit against the
State, as to all liabilities originating after, or existing at the
time of the adoption of this Constitution[.]" Because the doc-
trine of sovereign immunity is implicit in the constitution,
this court may not abolish the doctrine; instead, the doctrine
may only be waived or altered by the legislature pursuant to
a general law. Vendrell, 226 Or at 278-79. Although the doc-
trine is constitutionally protected, this court interprets the
doctrine of sovereign immunity "within the narrowest possi-
ble bounds consistent with the constitutional provision."
State v. Shinkle, 231 Or 528, 539, 373 P2d 674 (1962). With
those principles in mind, we now analyze whether OHSU
would have enjoyed sovereign immunity at common law.

Article IV, section 24, presumes that the "State" is
immune from liability, but does not specify what entities are
encompassed by that term. This court has said that, in addi-
tion to the state itself and its agencies, entities that are
"instrumentalities" of the state enjoy full immunity from

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suit. Hale, 308 Or at 518. An instrumentality of the state
"perform[s] state functions," id. at 518. See also James & Yost
v. Board of Higher Edu., 216 Or 598, 600, 340 P2d 577 (1959)
(an instrument of the state is "charged with carrying out one
of the functions of government").6 Additionally, an instru-
mentality of the state "has such powers and duties only as the
state entrusts to [it] and these powers and duties are set forth
by statutory enactment." James & Yost, 216 Or at 600-01.

Our previous cases provide some guidance as to
what constitutes an instrumentality of the state. In Hale,
this court concluded that the Port of Portland was an instru-
mentality of the state entitled to immunity from civil lia-
bility. Hale, 308 Or at 517-18. The court noted that
the Port was created by the legislature to "have full control of
[the Willamette and Columbia Rivers] at [Portland, East
Portland and Albina], and between said cities and the sea, so
far and to the full extent that this State can grant the same."
Id. at 517 (internal quotation marks and citation omitted).
Although the Port's functions had expanded since its creation
to include serving the greater Pacific Northwest, the court
concluded that the Port remained an instrumentality of the
state because the Port continued to promote the shipping and
maritime interests of the Portland area. Id. at 518.

This court also has used the term "instrument[s]
of the state" in a case which determined that the State
Board of Higher Education enjoyed sovereign immunity.
James & Yost, 216 Or at 600-01. Noting that the State Board
of Higher Education was "not a separate and distinct entity"
from the state, the court also described it as "an instrument or
arm of the state, charged with carrying out one of the func-
tions of government, to-wit, the education of the peoples of
the state." Id. at 600 (emphasis added). The court explained

6 Other public bodies, such as municipal corporations, enjoyed immunity from
suit only when engaged in "governmental" functions, but not when engaged in "pro-
prietary" functions. Hale, 308 Or at 518. The distinction between governmental
and proprietary functions, however, is not entirely clear from our previous cases.
See id. at 518-19 (noting this court's inconsistent conclusions concerning whether
street maintenance, for example, was governmental or proprietary). Because we
conclude that OHSU is an instrumentality of the state, we do not address whether
OHSU was engaged in a governmental or proprietary function when it treated
plaintiff.

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that the State Board of Higher Education had only those
powers and duties as outlined by the legislature. Id. at 600-
01\. The court concluded that "[t]here can be little question
but that the action is one against the state." Id. at 600.

This court has also illuminated the concept of an
instrument of state government in the context of a chal-
lenge to the creation of public corporations under Article XI,
section 2, of the Oregon Constitution, which provides that
"[c]orporations may be formed under general laws, but shall
not be created by the Legislative Assembly by special laws."
In State ex rel Eckles v. Woolley, 302 Or 37, 726 P2d 918
(1986), the court evaluated whether the legislature's creation
of the State Accident Insurance Fund Corporation (SAIF) vio-
lated Article XI, section 2. The court explained that Article
XI, section 2,

"allows the creation of a corporation for a public purpose,
'whose members are citizens, not stockholders; an instru-
ment of the government with certain delegated powers, sub-
ject to the control of the legislature, and its members offi-
cers or agents of the government for the administration or
discharge of public duties.'"

Woolley, 302 Or at 47 (quoting Cook v. The Port of Portland,
20 Or 580, 583, 27 P 264 (1891) (emphasis added)). The court
concluded that SAIF Corporation's "exclusively govern-
mental management and the absence of private investment
or objective to operate for private profit" excluded it from the
prohibition of Article XI, section 2. Woolley, 302 Or at 49.7

From those cases, we glean certain attributes
generally possessed by instrumentalities of the state. An
instrumentality of the state performs a function traditionally
performed by the state. Additionally, the state generally out-
lines the powers and duties of its instrumentalities, either
via statutory enactment or some other method. An instru-
mentality of the state is subject, at least in part, to the control
of the state in some way.

7 We note that this court recently concluded that SAIF was not an arm of the
state for purposes of Eleventh Amendment immunity. Johnson v. SAIF, 343 Or
139, 156, 164 P3d 278 (2007). As we noted in that case, however, the test for Elev-
enth Amendment immunity is different than the analysis required to determine
whether an entity is an "instrumentality" of the state for state immunity purposes.
Id. at 147-48, 151 (outlining factors of Eleventh Amendment analysis).

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We now examine whether OHSU is an instrumental-
ity of the state and would have, therefore, been immune at
common law. Plaintiff concedes that, prior to 1995, OHSU
was an instrumentality of the state, but asserts that since
1995, when the legislature recreated OHSU as a public cor-
poration, OHSU no longer is an instrumentality of the state.
On the limited record before us in this proceeding we dis-
agree with plaintiff's contention.

Prior to 1995, OHSU was part of the Oregon State
System of Higher Education. Since 1995, OHSU has been a
"public corporation" under ORS 353.020; that term is defined
as

"an entity that is created by the state to carry out public
missions and services. In order to carry out these public
missions and services, a public corporation participates in
activities or provides services that are also provided by pri-
vate enterprise. A public corporation is granted increased
operating flexibility in order to best ensure its success,
while retaining principles of public accountability and fun-
damental public policy. The board of directors of a public
corporation is appointed by the Governor and confirmed
by the Senate but is otherwise delegated the authority to
set policy and manage the operations of the public
corporation."

ORS 353.010(2). The legislature also decreed that OHSU
"shall be a governmental entity performing governmental
functions and exercising governmental powers" and "shall be
an independent public corporation with statewide purposes
and missions." ORS 353.020. Thus, the statute explicitly
states that OHSU shares the first attribute of an instrumen-
tality of the state-performing functions or providing serv-
ices that the government has traditionally performed or
provided.

The legislature also stated, however, that OHSU
"shall not be considered a unit of local or municipal govern-
ment or a state agency for purposes of state statutes or con-
stitutional provisions." ORS 353.020. In our view, this state-
ment does not alter our conclusion that OHSU would have
been considered immune at common law. Whether OHSU is
to be considered a "unit of local or municipal government" or
a "state agency" is not the end of inquiry for determining if

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OHSU would have enjoyed immunity at common law. An
entity can be an "instrumentality of the state" even if it is nei-
ther a unit of municipal government or a state agency. To
make the determination of whether OHSU is an instrumen-
tality of the state, we must examine the entire context of the
statutes creating OHSU as a public corporation. That statu-
tory context, as examined below, demonstrates that OHSU is
an instrumentality of the state that would have been entitled
to immunity at common law.8

In those statutes, the legislature specified some of
OHSU's public services and functions, in describing the mis-
sions and purposes of OHSU. Specifically:

"(1) It shall be the public policy of the Oregon Health
and Science University in carrying out its missions as a
public corporation:

"(a) To serve the people of the State of Oregon by pro-
viding education in health, science, engineering and their
management for students of the state and region.

***** *

"(3) The university is designated to carry out the fol-
lowing public purposes and missions on behalf of the State
of Oregon:

"(a) Provide high quality educational programs appro-
priate for a health and science university;

"(b) Conduct research in health care, engineering,
biomedical sciences and general sciences;

"(c) Engage in the provision of inpatient and outpa-
tient clinical care and health care delivery systems
throughout the state;

"(d) Provide outreach programs in education, research
and health care;

"(e) Serve as a local, regional and statewide resource
for health care providers; and

"(f) Continue a commitment to provide health care to
the underserved patient population of Oregon.

We note also that the OTCA is specifically made applicable to OHSU, under
ORS 353.100(1).

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"(4) The university shall carry out the public purposes
and missions of this section in the manner that, in the
determination of the Oregon Health and Science University
Board of Directors, best promotes the public welfare of the
people of the State of Oregon."

ORS 353.030. OHSU's purposes, therefore, include
"promot[ing] the public welfare of the people of the State of
Oregon[,]" in part through providing education and health
care to the people of the State. ORS 353.030(4). Without
question, the particular combination of education and health
care in the form of a research and teaching hospital is tradi-
tionally a function performed by the state, at least for the last
century. See, e.g., James & Yost, 216 Or at 600 (one of the
functions of the state government is "the education of the
peoples of the state"). OHSU's functions, as outlined by stat-
ute, demonstrate that it possesses the first attribute of an
instrumentality of the state.

OHSU also possesses the second attribute of an
instrumentality of the state. In James & Yost, this court
described an instrument of the state as possessing those pow-
ers "as the state entrusts to [it]." Id. at 600. In ORS 353.050,
the legislature outlined more than 20 "[p]owers and duties of
board and university officials," including setting policies for
the university, entering into contracts, including partner-
ships and joint ventures, entering into real estate transac-
tions, suing and being sued in its own name, investing funds,
borrowing funds, and developing academic programs.
The legislature also granted to the board or OHSU the power
to "[p]erform any other acts that in the judgment of the board
or university are requisite, necessary or appropriate in
accomplishing the purposes described in or carrying out the
powers granted by this chapter." ORS 353.050(25). This list
of powers outlined by the legislature, though broad, suggests
that OHSU is an instrumentality of the state.

The governance structure of OHSU also is an impor-
tant indicator that OHSU is an instrumentality of the state.
OHSU's board of directors consists of 10 members who,
except for OHSU's president, are appointed by the Governor
and confirmed by the Senate. ORS 353.040(1). Except for
OHSU's president and a student member of the board of

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directors, each member serves a four-year term. ORS
353.040(2). The Governor has the authority to remove any
board member for cause, after notice and public hearing.
ORS 353.040(7). The board is charged with "exercis[ing] all
the powers of the Oregon Health and Sciences University"
and "govern[ing] the university." ORS 353.050. In carrying
out those powers, "the university shall be a governmental
entity performing governmental functions and exercising
governmental powers." Id.

Based on the entirety of the statutes discussed
above, we conclude that OHSU is an instrumentality of the
state performing state functions. We therefore agree with the
Court of Appeals' conclusion that OHSU would have been
entitled to immunity at common law. When an entity would
have been immune from liability at common law, the legisla-
ture's choice to limit that entity's liability does not violate
Article I, section 10. Hale, 308 Or at 518. Therefore, the
OTCA's damages limitation, as applied to plaintiff's claim
against OHSU, does not violate Article I, section 10.9

### D. Plaintiff's claim against the individual defendants

Having concluded that the common law in Oregon in
1857 would not have recognized a cause of action for negli-
gence against OHSU, we now address whether the OTCA's
elimination of a cause of action against the individual defen-
dants, combined with its damages limitation, survives scru-
tiny under Article I, section 10. As we noted earlier, the
Oregon Constitution guarantees that "every man shall have
remedy by due course of law for injury done him in his per-
son, property, or reputation." Or Const, Art I, § 10.

On review, defendants offer several arguments sup-
porting their assertion that the Court of Appeals erred in

9 We briefly address plaintiff's argument that the damages limitation of the
OTCA violates his right to a jury trial under Article I, section 17. Article I, section
17, is not the source of any substantive claim or theory of recovery. Jensen, 334 Or
at 422. Instead, as this court summarized in Lakin v. Senco Products, Inc., 329 Or
62, 82, 987 P2d 463 (1999), Article I, section 17, "guarantees a jury trial in civil
actions for which the common law provided a jury trial when the Oregon Consti-
tution was adopted in 1857 * * *. " See also Jensen, 334 Or at 422 (quoting same).
Here, we have concluded that plaintiff would not have had a civil action against
OHSU under the common law. Therefore, the OTCA's damages cap as against
OHSU does not violate plaintiff's right to a jury trial under Article I, section 17.

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holding that the application of the OTCA in this case violated
the Remedy Clause. First, defendants contend that Article I,
section 10, guarantees only that a remedy of some kind be
available, not that the remedy be of any certain type or
amount. Therefore, in defendants' view, because plaintiff
here has a remedy available to him in the form of an action
against OHSU, there is no Article I, section 10, infirmity. Sec-
ond, defendants assert that the Court of Appeals erred in
comparing the amount of damages available under the OTCA
to the amount of damages claimed by plaintiff. Defendants
argue that "substantial," as that term had been used in this
court's Remedy Clause jurisprudence, does not call for such a
comparison; instead, defendants contend that "substantial"
refers to the remedial process or, at the very most, that a sub-
stitute remedy need only be one that is not illusory or the
practical equivalent of no remedy at all.10

From the foregoing, the state contends that the court
should review a legislatively substituted remedy on a cate-
gorical basis only. Put another way, the state suggests that
the determination of whether a substitute remedy is ade-
quate should not focus on the facts of an individual case, but
instead should focus on the balance struck by the legislature
in creating a substitute remedy. The state asserts that,
unless a category of potential plaintiffs is left without a rem-
edy, the legislative policy choice is conclusive.

On the other hand, plaintiff contends that the
Remedy Clause protects both the procedure for seeking
redress as well as the substance of that redress. Plaintiff
argues further that, when the legislature abolishes a
common-law remedy, it must provide a remedy that is "sub-
stantially equivalent" to the common-law remedy.

This court has addressed Article I, section 10, chal-
lenges to the OTCA on three prior occasions. In Hale, this
court rejected an Article I, section 10, challenge to the OTCA
as applied to an action brought against the City of Portland

1º Defendants' contention that the "remedy" guaranteed by Article I, section
10, refers only to the process of administering justice, and not to the substance of
the remedy afforded, is contradicted by our decision in Smothers, 332 Or at 124, as
we noted earlier: "The word 'remedy' refers both to a remedial process for seeking
redress for injury and to what is required to restore a right that has been injured."

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(City) and the Port of Portland (Port). Hale, 308 Or at 517-24.
The plaintiff in that case suffered injuries stemming from an
alleged failure of the City and the Port to maintain a road. Id.
at 511. The plaintiff's medical expenses totaled more than
$600,000; however, upon motion by the City and Port, the
trial court struck the plaintiff's claim for damages in excess of
the $100,000 damages limitation in effect at the time and
entered judgment against the City and the Port for $100,000.
Id. On review, the plaintiff challenged the constitutionality of
that damages limitation. Id.

The court in Hale first concluded that the Port would
have been immune from liability at common law; therefore,
the damages limitation did not "deny plaintiff any right he
ha[d] against the Port by virtue of the guarantee in Oregon
Constitution Article I, section 10, because there never was
such a right." Id. at 518. The court reached a different conclu-
sion regarding the City, and therefore went on to analyze the
damages limitation as to the plaintiff's claim against the
City. Id. at 521-24. The court explained that Article I, section
10, permits the legislature to alter a common-law remedy, “so
long as the party injured is not left entirely without a remedy.
\* \* \* [T]he remedy need not be precisely of the same type or
extent; it is enough that the remedy is a substantial one." Id.
at 523 (emphasis added). In upholding the OTCA's damages
limitation, Hale emphasized that the legislature had struck a
new balance between municipal corporations and potential
plaintiffs. Id. The court concluded that the remedy available
to plaintiff was "substantial" because, although the OTCA
reduced the size of the potential recovery, it also expanded
the class of plaintiffs that could recover by not requiring a
plaintiff to demonstrate that the municipal corporation was
engaged in a proprietary activity when it injured that plain-
tiff. Id. The court described that quid pro quo as follows:

"A benefit has been conferred, but a counterbalancing bur-
den has been imposed. This may work to the disadvantage
of some, while it will work to the advantage of others. But
all who had a remedy continue to have one. This may not be
what plaintiff wants. It may not even be what this court, if
it were in the business of making substantive law on this
subject, would choose to enact. But it is within the legisla-
ture's authority to enact in spite of the limitations of the
Oregon Constitution, Article I, section 10."

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Id. at 523. Justice Linde concurred separately, asserting that
"the court has allowed legislative immunization of cities from
tort liability only on condition that the individuals who are
personally responsible for harm qualifying as a legal injury
remain liable." Id. at 530. Because Hale included no claim
against individual public officers, Justice Linde agreed with
the court's conclusion. Id.

The court next addressed the OTCA's constitution-
ality under Article I, section 10, in Neher v. Chartier, 319 Or
417, 879 P2d 156 (1994). In that case, the plaintiff's adult
daughter was struck and killed by a bus operated by Tri-
County Metropolitan Transportation District of Oregon
(TriMet). Id. at 420. The plaintiff brought a wrongful death
action against TriMet and the bus driver. Id. at 420-21. The
defendants moved for judgment on the pleadings, arguing
that they were immune from liability under ORS
30.265(3)(a),11 because the decedent was covered by the work-
ers' compensation law at the time of her death. Id. at 421. The
trial court granted the defendants' motion. Id. The Court of
Appeals affirmed. Id. at 421-22. On review, the plaintiff
argued that the $3,000 burial benefit available to a dece-
dent's estate under the workers' compensation scheme, if it is
the only remedy available for wrongful death at the hands of
a public employee, is a denial of a "substantial" remedy, in
violation of Article I, section 10. Id. at 422. The court agreed,
explaining that ORS 30.265(3)(a) denied the decedent's sur-
viving parents a remedy that they would have been entitled
to under the wrongful death statutes. Id. at 426-27. The court
emphasized that ORS 30.265(3)(a) abolished the parents'
remedy against both the municipality and the allegedly neg-
ligent employees of the municipality. Id. at 428. Therefore,
the court concluded that ORS 30.265(3)(a) violated Article I,
section 10. Id.12

" ORS 30.265(3)(a) provided, in part:

"Every public body and its officers, employees and agents acting within the
scope of their employment or duties, * * * are immune from liability for:

"(a) Any claim for injury to or death of any person covered by any workers'
compensation law."

12 In Storm v. McClung, 334 Or 210, 222-23, 47 P3d 476 (2002), this court dis-
avowed Neher, to the extent that it concluded that ORS 30.265(3)(a) violated Arti-
cle I, section 10, because, contrary to the holding in Neher, Article I, section 10,
affords protection only to injuries for which a cause of action existed in 1857.

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Most recently, in Jensen, 334 Or at 417-21, this court
addressed whether ORS 30.265(1), on its face, violated Arti-
cle I, section 10. Jensen was a case involving certified ques-
tions from the United States District Court for the District of
Oregon. Id. at 415. The plaintiff in that case alleged that a
foster parent abused her daughter while she was in the cus-
tody of the Children Services Division of the State of Oregon
(CSD). Id. at 416. The plaintiff alleged that individual agents
and employees of CSD were negligent. Id. The individual
defendants moved to strike and dismiss the claims against
them and to substitute the state as the sole defendant pur-
suant to ORS 30.265(1). Id. While that motion was pending,
the plaintiff moved the district court to certify questions to
this court as to the constitutionality of ORS 30.265(1). Id.
This court declined to consider any of the certified questions
presented as "as-applied" challenges to ORS 30.265(1);
instead, the court considered only facial challenges to that
statute. Id. at 415-16. Addressing the facial challenge under
Article I, section 10, this court applied the two-step analysis
governing Article I, section 10, claims set forth in Smothers,
332 Or at 124:

"[O]ur first step is to determine whether the injury that
plaintiff has alleged is one for which the remedy clause
guarantees a remedy. If we answer that question affirma-
tively, and if the legislature has abolished that common-law
claim, then our second step is to determine whether the leg-
islature has provided a constitutionally adequate substi-
tute remedy for that abolished common-law claim."

Jensen, 334 Or at 418 (internal citation omitted). The court
assumed, without deciding, that the injury alleged was one
for which Article I, section 10, guarantees a remedy. Id. The
court then analyzed whether ORS 30.265(1), which required
the plaintiff to bring an action against the public body alone,
provided a constitutionally adequate substitute remedy. Id.
at 418-21. The court concluded that the OTCA was capable of
constitutional application. Id. at 421. The court reasoned:

"Because the damages 'cap' is not implicated in every case,
and because a damages award has yet to be determined in
this case, the damages 'cap' does not render the remedy
available to plaintiff 'incapable of restoring the right that
has been injured.'"

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Id. at 421 (quoting Smothers, 332 Or at 119-20). This court
therefore held that ORS 30.265(1) does not, on its face, vio-
late Article I, section 10. Jensen, 334 Or at 421.

Article I, section 10, cases outside of the OTCA con-
text also provide guidance. For example, in Greist v. Phillips,
322 Or 281, 291, 906 P2d 789 (1995), this court held a statu-
tory substitute remedy to be "substantial." In that case, the
court reviewed the application of the damages limitation set
forth in ORS 18.56013 to a wrongful death claim. Id. at 284.14
Following a trial, the jury awarded economic damages of
$100,000 and noneconomic damages of $1.5 million to the
decedent's personal representative. Id. at 286. Pursuant to
ORS 18.560, the trial court reduced the noneconomic dam-
ages to $500,000. Id. On review, the plaintiff argued that,
among other things, the trial court's application of ORS
18.560 to reduce her noneconomic damages award violated
Article I, section 10. Id. at 290. The court rejected that argu-
ment, citing Hale and Neher for the proposition that Article I,
section 10, is not violated so long as the party injured is not
left without a substantial remedy. Id. at 290-91. The court
concluded that the $600,000 total remedy that plaintiff
received under ORS 18.560 was "substantial," emphasizing
that statutory wrongful death actions in Oregon historically
had been subject to low limits of recovery and that the statute
contained no limit on economic damages. Id. at 291.

In Smothers, the court addressed whether "the leg-
islature ha[d] deprived plaintiff of a means for seeking
redress for [his] injury * * *. " Smothers, 332 Or at 120 n 19
(emphasis in original). Although Smothers did not illuminate
the contours of what constitutes a remedy under Article I,
section 10, and, in fact, did not address the restorative aspect

13 ORS 18.560 placed a limitation on noneconomic damage awards of $500,000
in all civil actions except for those brought pursuant to the Oregon Tort Claims Act
and the Oregon Workers' Compensation Act. Greist, 322 Or at 284 n 1. That statute
was later held unconstitutional under Article I, section 17, in Lakin, 329 Or at 82.

14 Greist assumed that the Remedy Clause applied to a statutory wrongful
death action. We note that, in accordance with our decision in Storm, 334 Or at 222-
23, limits on legislatively created causes of action are not subject to Article I, sec-
tion 10.

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of the Remedy Clause at all, Smothers did observe that Arti-
cle I, section 10, does not "freeze[ ] in place common-law rem-
edies." Id. at 119. Instead, the legislature may alter common-
law remedies, but "may not substitute an 'emasculated
remedy' that is incapable of restoring the right that has been
injured." Id. at 119-20 (quoting West v. Jaloff, 113 Or 184,
195, 232 P 642 (1925)).15

In sum, this court consistently has held that Article I,
section 10, is not merely an aspirational statement, but was
intended by the framers of the Oregon Constitution to pre-
serve for future generations, against legislative or other
encroachment, the right to obtain a remedy for injury to
interests in person, property, or reputation under circum-
stances in which Oregon law provided a remedy for those
injuries when Oregon ratified its constitution. See, e.g.,
Smothers, 332 Or at 124 ("At a minimum, to be remedy by
due course of law, the statutory remedy must be available for
the same wrongs or harms for which the common-law cause
of action existed in 1857."). However, as our review of the
cases demonstrates, Article I, section 10, does not eliminate
the power of the legislature to vary and modify both the form
and the measure of recovery for an injury, as long as it does
not leave the injured party with an "emasculated" version of
the remedy that was available at common law.

The constitution's terms do not identify what would
constitute an impermissible deprivation of a "remedy by due
course of law for injury done * * *. " Or Const, Art I, § 10. That
phrase embodying (as it does) an affirmative guarantee of
government action rather than a more familiar restraint on
particular lawmaking or a procedural mandate, has pro-
duced some degree of inconsistency in our cases. It may be

15 Smothers's use of the phrase "emasculated remedy" has its origins in this
court's decision in West. Smothers, 332 Or at 119-20. In West, 113 Or at 195, this
court held that ambulance drivers would remain liable for negligently inflicted
injuries, despite a statute that could have been construed to limit such liability,
because such a construction took away "from an injured person a good common-law
remedy for a private injury committed by a private citizen and gives him an emas-
culated remedy wholly inadequate under many conditions." (Emphasis added.) The
court also explained that such a remedy "could not be taken away without provid-
ing some other efficient remedy in its place." Id. (emphasis added). West, however,
did not involve-and therefore did not provide-an analysis of a statutory limita-
tion on recoverable damages.

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that some of the inconsistency stems from an erroneous con-
sideration of Article I, section 10, as a "due process of law"
clause. See Perozzi, 149 Or at 350 (so holding).16 Other prob-
lems arise when, understandably, litigants advocate for
modes of analysis and formulas without regard to the context
in which this court has discussed them. For example, in Hale,
the court determined that a limited remedy against public
bodies for personal injury was permissible. However, the
court in Hale had no occasion to consider the constitutional-
ity of a liability scheme that altered the common-law right of
a personal injury victim to bring an action against any indi-
vidual tortfeasor for the full damage amount. Hale, 308 Or at
530 (Linde, J., concurring) ("this case presents no claim
against public 'officers or employees or agents,' ORS 30.265").
Similarly, Greist involved the special context of a statutory
limitation on a remedy that the legislature itself had created
for wrongful death and, like Hale, did not consider a limit on
a common-law remedy against an individual tortfeasor. See
Greist, 322 Or at 290-91 (describing context of dispute).

Smothers represents a more recent effort by this
court to identify the substance of the remedy guarantee in
the context of a personal injury incurred by a plaintiff while
working for a private employer. This court, citing earlier
cases, acknowledged the legislature's reservoir of lawmaking
authority to adjust remedial processes and substantive rem-
edies to satisfy the constitutional command to provide "rem-
edy by due course of law for injury * * *. " Smothers, 332 Or at
119. However, in focusing on that authority, this court stated
that any alteration may not substitute an "emasculated" ver-
sion of the remedy that was available at common law. Id. at
119-20.

Our assessment of the "injury done [plaintiff] in his
person" is relatively simple in the context of this case. Plain-
tiff alleges, and defendants admit for purposes of this pro-
ceeding, that, due to the personal injury suffered here as a
consequence of defendants' negligence, plaintiff has suffered
economic damages in the sum of $11,073,506, for anticipated
life and health care expenses, and $1,200,000 for lost future

16 We need not revisit the "due process of law" question to decide this case. This
court disavowed that reasoning in Smothers, 332 Or at 121-22.

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earning capacity, for total economic damages of $12,273,506.
Plaintiff also alleges, and defendants admit, that plaintiff
has suffered noneconomic damages in the sum of $5,000,000.
There is no dispute that, when Oregon adopted its remedy
guarantee, plaintiff would have been entitled to seek and, if
successful, to recover both types of damages from the individ-
ual defendants.

With the 1991 amendment to the OTCA, the legis-
lature eliminated a plaintiff's right to seek a full recovery for
torts committed by public officers, employees, or agents. That
amendment left any injured person, in those circumstances,
with a capped remedy of $100,000 in economic damages and
$100,000 in noneconomic damages against the public body
only.17 The statute also eliminates entirely any claim against
the individual tortfeasors by requiring substitution of those
individual defendants by the public body as the sole
defendant.

The individual defendants attempt to justify the
complete statutory elimination of their liability by contend-
ing that the damage awards against a public body that ORS
30.270(1) allows constitute an adequate "remedy by due
course of law." In so arguing, they rely on this court's opinion
in Hale, however, as our discussion above indicates, Hale is
distinguishable. Hale examined the adequacy of a statutorily
capped monetary remedy in a claim against public bodies.
Hale, 308 Or at 511-12, 521-24. In that case, with respect to

17 ORS 30.270(1)(b) states that damages recoverable against a public body
shall not exceed:

"$100,000 to any claimant as general and special damages for all other
claims arising out of a single accident or occurrence unless those damages
exceed $100,000, in which case the claimant may recover additional special
damages, but in no event shall the total award of special damages exceed
$100,000."

General damages, as noted above, now are described as noneconomic damages
and encompass nonmonetary losses, including damages for pain and suffering,
emotional distress, injury to reputation, and loss of companionship. See, e.g., ORS
31.710(2)(b) (defining noneconomic damages in the context of a statute limiting
recovery for noneconomic damages in civil cases). Special damages now are
described as economic damages and refer to the verifiable out-of-pocket losses,
including medical expenses, loss of income and future impairment of earning
capacity, and costs to repair damaged property. See, e.g., ORS 31.710(2)(a) (defin-
ing economic damages).

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the municipal defendant that did not enjoy sovereign immu-
nity, the court's analysis did not address the injured plain-
tiff's traditional right to seek full relief from an individual
tortfeasor. Id. at 521-24. The statutory scheme at issue here,
in contrast, eliminates any claim against an individual tort-
feasor. Hale does not assist the defendants in this case.

Neither does Greist support the individual defen-
dants. As explained above, the statutory damage limitation
at issue in Greist allowed recovery of 100 percent of any eco-
nomic damages and up to $500,000 in noneconomic damages.
Greist, 322 Or at 291. Placing no limit on recovery of eco-
nomic damages allowed plaintiffs to recover fully their out-of-
pocket losses, including expenses for medical, burial, and
memorial services. Id. The court also explained that the
wrongful death claim, at issue in that case, "came into exis-
tence with a limitation" and that, historically, recovery for
wrongful death had been low. Id. Considered in that context,
the court concluded that the legislative choice did not violate
Article I, section 10. Id. In contrast, the legislation under
review here does not merely adjust the recovery for a legisla-
tively created remedial scheme; instead, it eliminates a
common-law remedy against an individual tortfeasor.

We view plaintiff's economic damages of over
$12 million as representative of the enormous cost of lifetime
medical care currently associated with permanent and
severe personal injuries caused by the medical negligence of
a state officer, agent, or employee. Defendants do not argue
that those damages do not constitute an "injury" within the
meaning of the constitution. Nor does anything in the legis-
lation suggest such a conclusion by the legislature. Yet, the
legislature has completely eliminated an injured person's
preexisting right to obtain a full recovery for those damages
from the individual tortfeasors who negligently caused the
injuries.

As we have explained, the legislature is authorized
under Article I, section 10, to vary or modify the nature, the
form, or the amount of recovery for a common-law remedy.
However, that authority is not unlimited. To be clear, we
respect the legislature's goal in amending the OTCA in
1991-the legislature was entitled to conclude that the goal

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of encouraging public employment of qualified health care
professionals by protecting them from the demands of litiga-
tion and the threat of personal liability is an important one.18
However, there is simply nothing that we can discern from
our state's history, or from the nature, the form, or the
amount of recovery available for the preexisting common-law
claim, that would permit this court to conclude that the lim-
ited remedy for permanent and severe injury caused by med-
ical negligence that is now available under the OTCA meets
the Article I, section 10, remedy requirement.

In sum, we hold that (1) OHSU would have been
entitled to sovereign immunity at common law and, there-
fore, plaintiff would have had no common-law claim against
OHSU that is entitled to protection under Article I, section
10; (2) because OHSU is entitled to sovereign immunity, the
legislature can limit damages recoverable against OHSU to
any amount it chooses, unfettered by Article I, section 10's
Remedy Clause; however, (3) the elimination of a cause of
action against public employees or agents in ORS 30.265(1),
as applied to plaintiff's claim against the individual defen-
dants, violates the Remedy Clause of Article I, section 10,
because the substituted remedy against the public body, as
specified in ORS 30.270(1), is an emasculated version of the
remedy that was available at common law.19

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed and the case is
remanded to the circuit court for further proceedings.

BALMER, J., concurring.

Plaintiff was injured by the medical negligence of
employees of Oregon Health and Science University (OHSU).

18 We note, however, that OHSU health care professionals who provide patient
care outside of the OHSU system, pursuant to a private relationship between the
patient and the professional, are not protected by the OTCA. See ORS 30.268(2)
(noting that "services constituting patient care that are provided at a location other
than the [OHSU campus or clinics] are not within the scope of state employment or
duties" when those services are provided pursuant to "an exclusively private rela-
tionship").

19 Because we have concluded that the OTCA, in this case, violates Article I,
section 10, we need not address plaintiff's argument that the damages limitation of
the OTCA violates his right to a jury trial under Article I, section 17.

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Plaintiff suffered damages (which OHSU, for present pur-
poses, does not dispute) of at least $11 million, primarily for
the cost of his past and future medical care. Oregon's current
statutes limit plaintiff's recovery to $100,000 for economic
damages (medical costs, lost wages, and similar losses) and
another $100,000 for noneconomic damages, such as pain
and suffering. I agree with the majority's analysis and with
its conclusion that the statutes that lead to that result
deprive plaintiff of a remedy that he had at common law
without providing an adequate substitute remedy, in viola-
tion of the "Remedy Clause" of Article I, section 10, of the
Oregon Constitution.

I write separately to make two points. First, the
limit on the remedy available to plaintiff here should have
been increased long ago by the legislature-and the legisla-
ture should take this opportunity to reconsider the appropri-
ate tort claims act limits for medical malpractice claims
against OHSU. Second, the majority correctly states that the
Remedy Clause does not prevent the legislature from modi-
fying the form or amount of recovery-or even from eliminat-
ing-common-law claims, as long as it provides an adequate
substitute remedy. I would add that, under this court's cases,
a legislatively imposed limit on the damages that an injured
patient may recover against OHSU and its employees would
not violate the Remedy Clause as long as that limit does not
deprive the patient of a "substantial" remedy. Those cases
also demonstrate that the majority's decision does not
threaten existing statutes in which the legislature has
altered or eliminated common-law causes of action, such as
the workers' compensation system.

I begin with a point that should be apparent to all
the parties and amici in this case: The arbitrarily low cap on
damages for medical malpractice claims against OHSU and
its employees is a problem that has long called for a legisla-
tive solution. The present tort claims act imposes a cap of
$100,000 for economic damages and another $100,000 for
noneconomic damages for torts committed by public agencies
and their employees without regard to the nature of the tort.
ORS 30.270. Those limits may well be appropriate for most
torts committed by public employees. Car accidents in which

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a public employee is at fault; the failure to clear ice from a
public sidewalk leading to an injury-the damages from
those kinds of injuries may occasionally exceed the cap, but
ordinarily they will not. It is for that reason that drivers and
homeowners often carry insurance of $100,000 per person
and $300,000 per accident. But, as this case so tragically
illustrates, the nature of medical malpractice claims is such
that damages in the form of future medical expenses and lost
wages often can be hundreds of thousands or millions of dol-
lars. For that reason, doctors don't have malpractice insur-
ance of $100,000 or $300,000; rather, virtually every doctor in
Oregon has medical malpractice insurance coverage of at
least $1 million, with many doctors maintaining coverage of
$3 million or $5 million per occurrence.1

The insurance obtained by individuals for claims
arising from their driving and homeownership-and by doc-
tors for malpractice claims-does not necessarily determine
the limits of liability that the legislature should set for pur-
poses of the Oregon Tort Claims Act, let alone the level that is
required by the Remedy Clause. At the very least, however,
the decisions of private individuals and institutions regard-
ing their insurance coverage provide some indication of the
kinds of claims those private actors ordinarily face and, indi-
rectly, of what kind of remedy for those claims likely would be
"substantial" or "adequate" for purposes of the Remedy
Clause. In any event, the fact that virtually every Oregon
doctor carries malpractice insurance that far exceeds the
caps applicable to OHSU and its employees suggests that
those limits need to be changed. In my view, the legislature
should, at least for medical malpractice claims, increase the
existing claims limit substantially and immediately and, per-
haps, retroactively.

My second point relates to the standards by which
this court reviews legislative modifications of common-law
causes of action to determine whether they are consistent

¿ According to one comprehensive survey, for 2003, 34.9 percent of Oregon doc-
tors had malpractice insurance with a per occurrence limit of $1 million (a decline
from 45 percent in 1996), while 26.8 percent had a per occurrence limit of $5 million
(up from 22.2 percent in 1996). Oregon Professional Panel for Analysis of Medical
Professional Liability Insurance, A Report on Factors Impacting Medical Malprac-
tice Insurance Availability and Affordability p 65 (2004).

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with the Remedy Clause. This court's Remedy Clause cases
allow the legislature to adjust Oregon law to changing cir-
cumstances by creating, eliminating, or altering causes of
action or providing defenses or immunities to the cause of
action; however, if those changes eliminate a common-law
remedy that existed in 1857, the legislature must provide an
adequate substitute remedy. See Smothers v. Gresham
Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001). The major-
ity recognizes that flexibility: "[T]he legislature is authorized
under Article I, section 10, to vary or modify the nature, the
form, or the amount of recovery for a common-law remedy,"
as long as an injured person has an adequate substitute rem-
edy. 343 Or at 609; see also 343 Or at 606 (Remedy Clause
"does not eliminate the power of the legislature to vary and
modify both the form and the measure of recovery for an
injury, as long as it does not leave the injured party with an
'emasculated' version of the remedy that was available at
common law.").

The difficulty, of course, in this as in other Remedy
Clause cases, is determining whether a substituted remedy is
constitutionally adequate. This court has not articulated a
precise test, and it probably is not possible to do so. As the
majority notes, we have used different words to try to identify
what kind of remedy is required. Many cases simply have
held that the legislature may not leave a plaintiff "without
remedy," Mattson v. Astoria, 39 Or 577, 579, 65 P 1066
(1901), or with only an "emasculated" remedy. West v. Jaloff,
113 Or 184, 195, 232 P 642 (1925). In Hale v. Port of Portland,
308 Or 508, 523, 783 P2d 506 (1989), the court reviewed the
earlier Remedy Clause decisions and stated that the Remedy
Clause "is not violated when the legislature alters (or even
abolishes) a cause of action, so long as the injured party is not
left entirely without a remedy. Under those cases, the remedy
need not be precisely of the same type or extent; it is enough
that the remedy is a substantial one." (Emphasis added.) In
Hale, this court upheld a cap on damages that the legislature
had enacted as part of an expansion of the class of plaintiffs
who could sue a public body: "A benefit has been conferred,
but a counterbalancing burden has been imposed. This may
work to the disadvantage of some, while it will work to the
advantage of others." Id.

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Plaintiff argues that any statute that imposes a limit
on the damages that a plaintiff could have recovered at com-
mon law violates the Remedy Clause. From plaintiff's per-
spective-which I respect, but disagree with-the Remedy
Clause prevents the legislature from eliminating plaintiff's
cause of action against the individual defendants in this case
and substituting OHSU as the sole defendant, as long as
there is any limit on OHSU's liability. Plaintiff asserts that
even if the legislature set a limit of $1 million or $10 million
on OHSU's liability, that limit would be unconstitutional as
applied to any plaintiff whose damages exceeded whatever
the limit happened to be.2 Plaintiff takes that position
because, at common law, plaintiff had a cause of action
against the individual defendants for all his damages, with-
out any limit whatsoever.

No Oregon case supports plaintiff's position that any
tort claims act limit would be unconstitutional when applied
to a plaintiff whose damages exceeded that limit. Hale is
almost directly on point. There, this court upheld a tort
claims damage limit of $100,000 on a claim against the City
of Portland, even though (1) the plaintiff's alleged economic
damages exceeded $600,000, and (2) at common law, the
plaintiff would have had a claim against the city for an
unlimited amount (because the claim was against the city
acting in a proprietary capacity). This court rejected the
plaintiff's argument that the $100,000 limit on damages that
could be recovered against the city violated the Remedy
Clause because the plaintiff's damages exceeded that amount.
As this court concluded in upholding the cap, although "a limit
has been placed on the size of the award that may be recov-
ered," all persons "who had a remedy continue to have one."
Hale, 308 Or at 523. More relevant to this case, the court in
Hale recognized that when the legislature modifies a common-
law claim, that change may "work to the disadvantage of
some, while it will work to the advantage of others." Id.

2 Plaintiff's challenge to the existing tort claims act limit-or to any such
limit-necessarily would be an "as applied" challenge available only to plaintiff (or
a similarly situated plaintiff) whose damages actually exceeded the limit. In
Jensen. v. Whitlow, 334 Or 412, 51 P3d 599 (2002), this court rejected a facial chal-
lenge to the tort claims act limit. Plaintiff does not ask us to overrule Jensen, and
the majority does not do so.

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Plaintiff asserts that Hale is distinguishable because
that case, unlike this one, did not involve a claim against
individual defendants that the legislature had eliminated.
Although Justice Linde relied upon that fact in his concur-
ring opinion, 308 Or at 527 (Linde, J., concurring), it played
no role in the majority's analysis. Rather, the majority in
Hale viewed the statutory scheme there as adjusting the lia-
bility of public defendants by making the city liable for torts
committed in its governmental capacity that it would not
have been liable for at common law. Similarly, in this case,
the statutory scheme adjusted the liability of public defen-
dants by eliminating the common-law claim against the indi-
vidual defendants and making OHSU liable for their torts-
liability from which it would have been immune at common
law.3 In both cases, those adjustments were accompanied by
the imposition of a limit on the amount of damages that,
without the statutory limit, could have been recovered at
common law.

Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995),
also rejected the argument that plaintiff makes here. In that
wrongful death case, a jury had awarded the plaintiff non-
economic damages of $1.5 million, but the trial court had
reduced the award to $500,000 pursuant to former ORS
18.560(1) renumbered as ORS 31.710 (2003). The plaintiff in
Greist made the same argument that plaintiff makes here:
that the cap "wholly denies a remedy for legitimate losses
that exceed $500,000." Greist, 322 Or at 290 (quoting the
plaintiff's brief; emphasis added). This court, however, con-
cluded that plaintiff's recovery of $500,000 in noneconomic
damages, in addition to $100,000 in economic damages, was
a "substantial remedy," even though it was a fraction of the
amount that the jury had awarded.

The majority distinguishes Hale and Greist from this
case on grounds that I find persuasive. However, nothing in
the majority opinion undermines the holdings in those cases
that the Remedy Clause does not prohibit the legislature
from imposing caps on tort damages as long as those caps do

3 Indeed, the majority reaffirms OHSU's status as part of the state and there-
fore partaking of the state's sovereign immunity, except to the extent waived by
statute.

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not deprive a plaintiff of a "substantial remedy." Hale and
Greist both hold that the legislature may act with regard to
classes of claims or plaintiffs and that a statutory limit on cer-
tain kinds of claims does not violate the Remedy Clause, even
though it may limit the damages that can be recovered by a
particular plaintiff for a particular claim. In my view, the
problem with the statutory scheme at issue in this case is not
the fact that OHSU's liability is capped, but rather that a cap
of $100,000 for economic damages and $100,000 for nonecon-
omic damages is not a substantial remedy for medical mal-
practice claims.

To summarize, Article I, section 10, does not "freeze
in place common-law causes of action that existed when the
drafters wrote the Oregon Constitution in 1857." Smothers,
332 Or at 124. Rather, the legislature may modify those rem-
edies by changing the nature of the plaintiff's claim, the
available defenses, or the amount of damages that the plain-
tiff may recover, as long as the plaintiff retains a substantial
remedy "for injury done him in his person, property, or repu-
tation." Here, the modification made by the legislature-the
elimination of the claims against the individual defendants
and the substitution of OHSU as the only defendant, with the
caps on OHSU's liability described above-did not leave
plaintiff with a substantial remedy for his malpractice claim.

That understanding of the issue in this case also
demonstrates that nothing in the majority's opinion under-
mines other statutes in which the legislature has adjusted
common-law rights and liabilities. The most obvious example
is the workers' compensation system. In Smothers, this court
stated that the court's earlier decisions "implicitly * * * rec-
ognized the legislature's constitutional authority to substi-
tute workers' compensation for the common-law negligence
cause of action for work-related injuries." 332 Or at 125. The
workers' compensation scheme provides an injured worker
with compensation for work-related injuries without the
necessity of proving the employer's negligence; however, the
amounts that a particular injured worker may receive may
well be less than he or she could recover in a successful neg-
ligence action against the employer. In a sense, an injured
worker's damages are capped at the level of benefits that the
worker receives under the workers' compensation program.

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However, because of the trade off of not having to prove the
employer's negligence (and other procedural advantages) and
because injured workers' benefits are related to the severity
of the injury, the workers' compensation scheme provides
workers generally with a "substantial remedy" for Remedy
Clause purposes.

In other statutes, the legislature has determined
that important public policies will be advanced by encourag-
ing certain activities and has modified common-law causes of
action involving those who participate in such activities.
"Good Samaritan" statutes limit the circumstances in which
a person injured by another person who provides emergency
medical assistance, transportation, or defibrillator treatment
can recover damages. See ORS 30.800; ORS 30.802; ORS
30.807. Other statutes provide individuals with limited
immunity for reporting child abuse, ORS 419B.025, and for
disclosing information about a former employee to a new
employer. ORS 30.178. In those and similar statutes, the leg-
islature has modified the plaintiff's common-law cause of
action by, for example, requiring the plaintiff to prove "gross
negligence" rather than "negligence," or by providing limited
immunity to defendants for some kinds of conduct. The
majority's decision, like this court's earlier Remedy Clause
cases, allows the legislature to respond to what it perceives to
be important public policy needs, as long as it does not elimi-
nate a common-law cause of action without providing an ade-
quate substitute remedy.

Kistler, J., joins in this concurring opinion.