What was the cap before Busch?

The 1987 Legislature enacted the cap as section 6 of Senate Bill 323, a broad tort-reform package, and codified it at ORS 18.560, later renumbered ORS 31.710. As enacted the statute capped noneconomic damages — pain and suffering, loss of consortium, loss of enjoyment of life — at $500,000 in any civil action seeking damages for bodily injury, emotional injury or distress, death or property damage. Two carve-outs were written in from the start: claims subject to the Oregon Tort Claims Act at ORS 30.260 to 30.300, and claims subject to workers’ compensation under ORS chapter 656. The $500,000 figure was inflation-frozen rather than indexed, so its effective bite grew over the decades following enactment as the value of compensable injury rose in real terms.

What did Busch v. McInnis Waste Systems hold?

Busch v. McInnis Waste Systems, Inc., 366 Or 628 (2020), was decided under the remedy clause of Article I, section 10, of the Oregon Constitution — not under the jury-trial clause. Scott Busch was struck by a garbage truck while crossing the street and had his leg amputated above the knee. The jury awarded $3,021,922 in economic damages and $10,500,000 in noneconomic damages, and the trial court reduced the noneconomic award to $500,000 under ORS 31.710. The Court of Appeals reversed, and the Oregon Supreme Court affirmed that decision, reversed the circuit court and remanded, concluding that application of ORS 31.710(1), as a limit on the noneconomic damages that a court can award to a plaintiff, violates Article I, section 10. Busch applied and extended the analysis the court had adopted in Horton v. OHSU (2016). It did not revive Lakin: the plaintiff asked the court to revisit Horton’s overruling of Lakin under Article I, section 17, and because the case was resolved under section 10 the majority declined to reach that question. Landau, S.J., writing only for himself, would have rested the result on Lakin and section 17. Justice Balmer dissented.

What about wrongful-death cases — does the cap apply there?

Wrongful death is where the cap still lives. Senate Bill 193, chapter 478 of the 2021 Oregon Laws, rewrote ORS 31.710(1) so that the $500,000 limit now applies only in a civil action for the wrongful death of any one person. The amendment took effect January 1, 2022, and section 2 of that Act makes it apply to all causes of action whether arising before, on or after that date, with one exception: it does not reach an award of noneconomic damages for which a final judgment had already been entered. Busch did not resolve the wrongful-death question. Busch was a personal-injury case, and the court there took care to note that Horton had not overruled Greist v. Phillips, 322 Or 281 (1995), which upheld the cap in a wrongful-death action, and that it need not overrule Greist either. Whether the cap can constitutionally be applied to a particular wrongful-death claim is litigated case by case. The Court of Appeals reached that question twice in 2026: in Estate of James Ritchie v. Helbig, 347 Or App 37, rev den, 375 Or 332 (2026), it held the cap does not violate the remedy clause and applied it, reducing the noneconomic award to $500,000; and in Estate of Grant Raymond Fisher v. Lee, 351 Or App 33 (2026), it again refused to say the cap can never apply to a death claim, but held that cutting a $20 million noneconomic award to $500,000 left that family without a constitutionally adequate remedy. The statute is facially valid; the challenge is as-applied and fact-specific, and a careful damages analysis at the start of any wrongful-death case includes that question.

Why does this matter for my malpractice case?

For a serious medical-malpractice case that does not involve death — a brain injury, a paralysis, a permanent disfigurement, a missed cancer diagnosis where the patient survives with reduced function — the cap question determines whether a substantial portion of the jury's verdict survives the post-trial process. Before 2020, a $5 million noneconomic verdict would be cut to $500,000 on the defendant’s post-trial motion. Today, where the patient survives, the same verdict survives intact — the statute no longer reaches non-death claims at all, and Busch decided the constitutional question against the cap besides. The change is a five-fold or larger swing in the value of any case where noneconomic damages dominate the loss, which describes most serious-injury malpractice claims short of death.

Oregon noneconomic damages cap after Busch — Huegli Law

Oregon law explainer

Oregon Noneconomic Damages After Busch

Q: Does Oregon have a cap on noneconomic damages in medical malpractice cases?

Not where the patient survives. ORS 31.710 still caps noneconomic damages at $500,000, but since a 2021 amendment took effect on January 1, 2022 the statute reaches only civil actions for wrongful death. Before that amendment, the Oregon Supreme Court held in Busch v. McInnis Waste Systems (2020) that applying the cap to cut a severely injured plaintiff’s noneconomic award violated the remedy clause of Article I, section 10, of the Oregon Constitution. So in a medical-malpractice case involving serious injury short of death, no statutory cap applies to noneconomic damages. Two separate limits are worth keeping straight: ORS 31.710 has never applied to claims against public bodies or to claims subject to workers’ compensation, and the Oregon Tort Claims Act limits at ORS 30.271 and ORS 30.272 continue to cap recovery against public-body defendants.

Q: What did Lakin v. Senco Products hold, and is it still good law?

Lakin v. Senco Products, Inc., 329 Or 62 (1999), was a pneumatic nail-gun products-liability case. The jury awarded John Lakin $2,000,000 in noneconomic damages and his wife $876,000 for loss of consortium, and the trial court cut each award to $500,000 under the cap. The Oregon Supreme Court held that the cap violated the right to jury trial preserved by Article I, section 17, of the Oregon Constitution, reasoning that the amount of noneconomic damages is a question of fact that section 17 commits to the jury in civil actions for which a jury trial was customary in 1857. Lakin is no longer good law. The Oregon Supreme Court expressly overruled it in Horton v. OHSU, 359 Or 168 (2016), holding that section 17 guarantees a procedural right to have a jury decide the claim but places no substantive limit on the legislature’s authority to define the extent of damages available. Anyone still citing Lakin for the proposition that Oregon’s cap is unconstitutional is citing an overruled case.

Todd Huegli, an Oregon medical malpractice attorney with 17+ years of trial experience, traces the Oregon Supreme Court decisions that left the ORS 31.710 noneconomic damages cap unenforceable in personal-injury cases — Horton (2016), which overruled Lakin (1999), and Busch (2020) — and explains the 2021 amendment that narrowed the statute to wrongful death.

Last reviewed: May 2026

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Why This History Matters

In the early 1990s, an Oregon plaintiff with a serious personal-injury claim had to plan around a hard $500,000 cap on noneconomic damages no matter how severe the injury or how clear the liability. In 2026, the same plaintiff in a case that does not involve death plans around no statutory cap at all. That change came in two steps, and they are easy to run together. First, in Busch v. McInnis Waste Systems (2020), the Oregon Supreme Court held that applying ORS 31.710 to cut a severely injured plaintiff's noneconomic award violated the remedy clause of Article I, section 10, of the Oregon Constitution. Then, in 2021, the Legislature rewrote the statute so that by its own terms it now reaches only wrongful-death actions.

The route the court took to Busch matters, because the case most often cited for it is the wrong one. Lakin v. Senco Products (1999) struck the cap down under Article I, section 17, the jury-trial clause — and the Oregon Supreme Court overruled Lakin in Horton v. OHSU (2016). Busch is built on Horton's remedy-clause framework, not on Lakin's jury-trial framework. A cap argument pitched under section 17 today is pitched on a theory the court has rejected.

For Oregon malpractice and personal-injury plaintiffs and for the lawyers who represent them, the cap history controls the present-day evaluation of every serious-injury case. The value of a brain injury, a paralysis, a permanent disfigurement, or a missed-cancer-diagnosis case where the patient survives is dominated by noneconomic damages. Whether the cap applies makes a difference of one or two orders of magnitude in the case's economic ceiling.

The ORS 31.710 Line of Cases

ORS 31.710 as enacted (1987)

The 1987 Oregon Legislature, responding to the perceived insurance crisis of the mid-1980s, enacted the cap as section 6 of Senate Bill 323 — a tort-reform package running to more than 150 sections that also restricted punitive damages, rewrote joint and several liability, and added a collateral-source statute. The cap was codified at ORS 18.560 and later renumbered ORS 31.710. It limited noneconomic damages to $500,000 in any civil action seeking damages for bodily injury, emotional injury or distress, death or property damage, and from the outset it excepted claims subject to the Oregon Tort Claims Act and claims subject to workers’ compensation. The $500,000 figure was not indexed to inflation, a drafting choice that ensured the cap’s effective scope would expand over time even without statutory amendment.

Lakin v. Senco Products (1999) — since overruled

The first major Oregon Supreme Court decision testing the cap, and the one most often miscited today. In a products-liability case arising from a pneumatic nail-gun injury, the trial court applied the cap to cut the jury’s noneconomic awards to $500,000 each — $2,000,000 for John Lakin and $876,000 to his wife for loss of consortium. The Court of Appeals held the cap unconstitutional under Article VII (Amended), section 3, and the Oregon Supreme Court affirmed that decision at 329 Or 62 on a different ground, holding that the cap violated Article I, section 17, of the Oregon Constitution — the jury-trial guarantee — because the amount of noneconomic damages is a question of fact that section 17 commits to the jury in civil actions for which a jury trial was customary in 1857. That holding stood for seventeen years and then fell: the court expressly overruled Lakin in Horton v. OHSU in 2016. Lakin is history here, not authority.

Hughes v. PeaceHealth (2008)

A wrongful-death medical-malpractice case, and the decision that first drew the line the 2021 Legislature would eventually write into the statute. The trial court reduced a $1,000,000 noneconomic verdict to $500,000, and the Oregon Supreme Court upheld the reduction at 344 Or 142. Its Article I, section 17, reasoning was that wrongful death in Oregon is purely statutory and has no secure basis in the common law as it existed in 1857, so the jury-trial guarantee confers no right to a damages award larger than the statute allows. Hughes also rejected the plaintiff’s remedy-clause argument, but that half of the opinion ran through Smothers v. Gresham Transfer, which Horton overruled in 2016. The section 17 holding is the part that survives.

Klutschkowski v. PeaceHealth (2013)

A birth-injury case: a child sustained a permanent arm-nerve injury during delivery, and the jury awarded $557,881.11 in economic and $1,375,000 in noneconomic damages. The trial court denied the defendant’s motion to apply the cap, and the Oregon Supreme Court ultimately affirmed the trial court’s judgment at 354 Or 150, holding that because medical malpractice is an action for which the right to jury trial was customary in 1857, Article I, section 17, prohibits the legislature from limiting the jury’s determination of noneconomic damages. The court expressly did not reach the remedy clause. Klutschkowski was the most direct medical-malpractice application of the Lakin rule — which is also why its constitutional holding did not outlast Horton. It rested entirely on Lakin, and Horton overruled Lakin. Horton did not name Klutschkowski as overruled; it observed only that the parties there had never asked the court to reconsider Lakin.

Horton v. OHSU (2016)

The turning point, and the case the rest of this line now runs through. Horton was a medical-malpractice case against a state-employed surgeon at OHSU arising from an operation on an infant. The jury returned a verdict of roughly $12 million, and the Oregon Tort Claims Act limited the recovery against the state employee to $3 million. The Oregon Supreme Court upheld that limit at 359 Or 168 — so on its own facts Horton was a defense win — but in getting there it rebuilt the framework. It overruled Smothers v. Gresham Transfer and recast the Article I, section 10, remedy-clause inquiry around how far the legislature departed from the common-law model measured against its reasons for doing so, with the substantiality of the remaining remedy as a check. And it overruled Lakin, holding that Article I, section 17, secures a procedural right to have a jury decide the claim but imposes no substantive limit on the legislature’s power to define the extent of damages. After Horton, an Oregon damages-cap challenge is a remedy-clause challenge.

Busch v. McInnis Waste Systems (2020)

The first post-Horton test of ORS 31.710, and the decision that ended the cap’s operation in personal-injury cases. Scott Busch was struck by a garbage truck while crossing the street and had his leg amputated above the knee. The jury awarded $3,021,922 in economic damages and $10,500,000 in noneconomic damages; the trial court cut the noneconomic award to $500,000. The Court of Appeals reversed, 292 Or App 820 (2018), and the Oregon Supreme Court affirmed that decision, reversed the circuit court’s decision and remanded, concluding at 366 Or 628 that “application of ORS 31.710(1), as a limit on the noneconomic damages that a court can award to a plaintiff, violates Article I, section 10.” Busch applied and extended the Horton analysis — not the Lakin analysis. The plaintiff asked the court to revisit Horton’s overruling of Lakin, and because the case was resolved under section 10 the majority declined to reach section 17. Landau, S.J., writing only for himself, would have rested the decision on Lakin and section 17. Justice Balmer dissented. The court also took care to preserve Greist: “We recognize that Horton did not overrule Greist, and we also need not overrule it to conclude that it is not controlling.”

2021 legislative response — Senate Bill 193

Senate Bill 193, chapter 478 of the 2021 Oregon Laws, amended ORS 31.710(1) so that the $500,000 limit now applies only “in any civil action for the wrongful death of any one person.” The older language reaching bodily injury, emotional injury or distress and property damage was struck out. The amendment took effect January 1, 2022, and section 2 of the Act makes it apply to all causes of action “whether arising before, on or after” that date, except as to an award of noneconomic damages for which a final judgment had already been entered — “final judgment” meaning one no longer subject to appeal. The practical consequence is that older injuries are governed by the narrowed statute too: a 2019 injury tried in 2024 is not subject to the broader pre-2022 cap. The same Act moved the definitions of economic and noneconomic damages out of ORS 31.710 and into ORS 31.705.

Ritchie v. Helbig and Fisher v. Lee (2026) — the wrongful-death cap tested

The two Court of Appeals decisions that took up the question Busch left open. Both are motor-vehicle death cases, not malpractice cases. In Estate of James Ritchie v. Helbig, 347 Or App 37, rev den, 375 Or 332 (2026), the court held that ORS 31.710(1) does not violate the remedy clause and applied it: the jury’s noneconomic award was reduced to $500,000, leaving a total remedy of $3,391,588 once the uncapped economic damages were added and the decedent’s own 46 percent share of fault was accounted for. In Estate of Grant Raymond Fisher v. Lee, 351 Or App 33 (2026), the same court treated Ritchie as controlling on the facial question and again refused to hold that the cap can never apply to a wrongful-death claim — but held that reducing a $20,000,000 noneconomic award to $500,000 left that family without a constitutionally adequate remedy under Article I, section 10. That award had been entered by a judge on a prima facie showing after the defendant failed to appear, not returned by a jury. The court set no dollar floor and no percentage test, and declined to decide the question by comparing percentages of recovery from earlier cases. The statute is facially valid; the challenge is as-applied and turns on the severity of the loss and the circumstances of the case.

Where the Law Stands Today

In a personal-injury or medical-malpractice case against a private defendant that does not involve death, ORS 31.710 does not limit noneconomic damages at all. Since January 1, 2022 the statute by its own terms applies only to wrongful-death actions, and the 2021 amendment reaches back to causes of action that arose before that date unless a final judgment on noneconomic damages had already been entered. Busch supplies a second, constitutional answer for any surviving-patient case the amendment somehow did not reach. The practical ceiling on the case is the jury's verdict, the available insurance, and the defendant's ability to pay — not a legislative limit.

In a wrongful-death case, the analysis is live. The $500,000 cap is the statutory default, and Busch did not decide whether it can constitutionally be applied there. Busch was a personal-injury case, and the court went out of its way to say that Horton had not overruled Greist v. Phillips (1995) — the decision upholding the cap in a wrongful-death action — and that it need not overrule Greist to decide the case in front of it. Hughes v. PeaceHealth (2008) points the same direction under Article I, section 17: wrongful death is a statutory cause of action under ORS 30.020, not a common-law one carried forward from 1857. Whether the cap survives a remedy-clause challenge in a particular death case is fought out case by case under the Horton framework, and the Court of Appeals reached that question twice in 2026. In Estate of James Ritchie v. Helbig the court held the cap does not violate the remedy clause and applied it, reducing the noneconomic award to $500,000 and leaving a total remedy of $3,391,588 once the uncapped economic damages were added and the decedent's own 46 percent share of fault was accounted for. In Estate of Grant Raymond Fisher v. Lee the same court again rejected the argument that the cap can never apply to a wrongful-death claim, but held that cutting a $20 million noneconomic award to $500,000 left that family without a constitutionally adequate remedy. The statute remains facially valid; the challenge is as-applied, the court set no dollar floor and no percentage test, and the outcome turns on the severity of the loss and the circumstances of the case. Damages planning in a wrongful-death case includes that analysis as one of several material variables.

In a case against a public-body defendant — OHSU, a county hospital, a city or county — ORS 31.710 was never the operative limit in the first place. The statute has excepted claims subject to the Oregon Tort Claims Act since it was enacted in 1987. The Tort Claims Act's own limits control instead: ORS 30.272 for local public bodies and ORS 30.271 for the state and its employees. Horton is itself a Tort Claims Act case, and the court there sustained the state limit against both remedy-clause and jury-trial challenges even though it left the plaintiff well short of the jury's verdict. Those limits apply to total damages — economic and noneconomic combined. The distinction between private-party defendants (where the ORS 31.710 history controls) and public-body defendants (where the Tort Claims Act controls) is one of the most important front-end analyses in any Oregon serious-injury case.

The second carve-out written into ORS 31.710 in 1987 is wider than its wording suggests, and it is the one most often overlooked in a death case. The statute excepts claims subject to the workers' compensation law, ORS chapter 656. In Vasquez v. Double Press Mfg., Inc., 364 Or 609 (2019), the Oregon Supreme Court read that exception to reach third-party claims brought by or on behalf of a worker injured in the course and scope of employment — not merely the compensation claim against the employer. So where a worker is killed on the job and the family's claim runs against someone other than the employer — the other driver in a highway collision, a machine manufacturer, a general contractor — the $500,000 wrongful-death cap does not apply at all, and no as-applied constitutional argument is needed to get past it. Whether a death arose in the course and scope of employment is therefore a damages question, not only a workers' compensation one.

Punitive damages occupy yet another framework. ORS 31.730 preserves punitive recovery on a clear-and-convincing showing of malice, or of reckless and outrageous indifference to a highly unreasonable risk of harm, and ORS 31.735 then splits any punitive award: 30 percent to the prevailing party, 60 percent to the Criminal Injuries Compensation Account and 10 percent to the State Court Facilities and Security Account. The punitive-damages framework is independent of the noneconomic-cap analysis and applies to its own narrower category of cases.

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