Torts II, Pages 677–681

Clarke v. Oregon Health Sciences University

Supreme Court of Oregon, 2007


  • Plaintiff, a three-month old infant was admitted to Oregon Health Sciences University Hospital, a public university hospital, to repair his congenital heart defect. Defendant's employees' negligence led to prolonged oxygen deprivation and permanent brain damage totally disabling plaintiff. His guardian sued for over $17,000,000. However Oregon law requires the suit against the individuals be dismissed and that only the state be sued. Another law says that there is a $200,000 damage cap against the state in tort actions.

  • Originally, the state could not be sued and individuals could. In 1967, the state's immunity was waived, although it had a damage limit, and both could be sued. In 1975, the state was required to indemnify individuals. In 1991, this was changed to simply eliminate any claim against an employee, leaving only the limited claim against the state.

    This last change was made because naming the officers was pointless if the state had to pay anyway, because they saw this as a "loophole" to get around the dollar limit, and because litigating lawsuits was expensive.

Procedural History:

  • Trial court granted judgment on the pleadings to the individual defendants and also to the plaintiff in the amount of $200,000.

  • Court of appeals affirmed the judgment against the state, but reversed the judgment for the individual defendants, finding the exclusive remedy provision in violation of the Oregon constitution.


  • While the Oregon constitution allows the legislature to change remedies, it cannot deny a remedy entirely.

  • Instrumentalities of the state are protected by immunity. Other public bodies can be protected by governmental immunity, but only when they are engaged in a "governmental" function as opposed to a "proprietary" function.


Does the exclusive remedy provision abolish a common law cause of action without providing an adequate substitute?

Defendant's Arguments:

  • Because plaintiff has some remedy available to him by suing the state, he is not entitled to sue the state.

  • The amount of damages awarded versus the amount sought does not matter. Only that the the remedial process was given or that some non-illusory remedy be given.


  • As the constitution presumes that the state is immune, the court cannot abolish this doctrine. Because of the university's purpose of promoting the public welfare, the state's entrustment of it with state powers, and its governance being appointed by the governor, it is an instrumentality of the state and would have had full immunity under the common law.
  • The legislature has eliminated plaintiff's ability to obtain a full recovery from the individual tortfeasors. This is beyond the legislature's authorization to modify a law.


Yes, it abolished plaintiff's ability to obtain a full recovery from the individual tortfeasors.