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

The statutory cap on ORS 31.710 — $500,000 on noneconomic damages — remains on the books, but a series of Oregon Supreme Court decisions has held it unconstitutional as applied to most categories of tort claims. In Lakin v. Senco Products (1999) the court held the cap unconstitutional as applied to common-law negligence claims under the Article I, section 17 right to jury trial. In Busch v. McInnis Waste Systems (2020) the court reaffirmed and extended that analysis. In medical-malpractice cases involving serious injury short of death, the practical answer today is that no statutory cap applies to noneconomic damages. The Oregon Tort Claims Act cap under ORS 30.272 is a separate matter and continues to limit recovery against public-body defendants.

What was the cap before Busch?

ORS 31.710 was enacted in 1987 as part of a broader tort-reform package. The statute imposed a $500,000 cap on noneconomic damages — pain and suffering, loss of consortium, loss of enjoyment of life — across most civil actions for personal injury or death. The cap was inflation-frozen at the original $500,000 figure 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 Lakin v. Senco Products hold?

Lakin v. Senco Products, 329 Or. 62 (1999), held that ORS 31.710's cap on noneconomic damages was unconstitutional as applied to a common-law negligence claim, on the ground that the cap violated the right to jury trial preserved by Article I, section 17 of the Oregon Constitution. The court reasoned that the right to jury trial includes the right to have the jury determine the amount of damages without legislative override, at least for causes of action that existed at common law when the Oregon Constitution was adopted in 1857. Lakin opened a line of Oregon Supreme Court cases that progressively narrowed the cap's effective scope.

What did Busch v. McInnis Waste Systems hold?

Busch v. McInnis Waste Systems, 366 Or. 628 (2020), confirmed and extended the Lakin analysis. The plaintiff, Scott Busch, had been seriously injured when a garbage truck struck him. The jury returned a verdict that included $10.5 million in noneconomic damages. The trial court applied ORS 31.710 to reduce the noneconomic award to $500,000. The Oregon Supreme Court reversed, holding the cap unconstitutional as applied. Busch reaffirmed the Article I, section 17 analysis and rejected the defense argument that legislative changes in the intervening decades had cured the constitutional defect. After Busch, the cap's continued vitality in any non-wrongful-death personal-injury case became untenable as a matter of Oregon law.

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

Wrongful death is the area where the cap analysis is most unsettled. The 2021 Oregon Legislature, responding to Busch, amended the cap framework to apply specifically to wrongful-death actions, on the theory that wrongful-death claims are statutory creations under ORS 30.020 rather than common-law causes of action preserved by Article I, section 17. The constitutionality of the post-2021 cap as applied to wrongful death continues to be litigated, and the outcome may differ depending on the specific facts and the analytical theory the parties advance. A careful damages analysis at the start of any wrongful-death case includes the cap 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. Pre-Busch, a $5 million noneconomic verdict would be cut to $500,000 on the trial court's motion. Post-Busch, the same verdict generally survives intact. 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

Todd Huegli, an Oregon medical malpractice attorney with 17+ years of trial experience, traces the line of Oregon Supreme Court decisions that dismantled the ORS 31.710 noneconomic damages cap — from Lakin (1999) through Busch (2020) — and explains the 2021 legislative response.

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 most non-wrongful-death cases plans around no statutory cap at all — the Oregon Supreme Court has dismantled the cap over a line of cases stretching from Lakin in 1999 to Busch in 2020. The change is not a legislative repeal: ORS 31.710 remains on the books. The change is a sequence of constitutional rulings under Article I, section 17 of the Oregon Constitution, each holding the cap unconstitutional as applied to one or another category of tort claim.

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 ORS 31.710 capping noneconomic damages at $500,000. The cap was part of a broader tort-reform package that included collateral-source-rule changes, modifications to joint and several liability, and limits on attorney fees in certain categories of cases. 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)

The first major Oregon Supreme Court decision testing ORS 31.710. In a products-liability case arising from a nail-gun injury, the trial court applied the cap to reduce the jury's noneconomic verdict. The Oregon Supreme Court reversed, holding that the cap violated Article I, section 17 of the Oregon Constitution as applied to common-law negligence claims. The court grounded the analysis in the historical scope of the right to jury trial in Oregon at the time of statehood and held that the right preserves the jury's role in determining damages on causes of action that existed at common law when the Constitution was adopted.

Hughes v. PeaceHealth (2008)

A wrongful-death medical-malpractice case that tested the application of the cap in a different procedural posture. The case sharpened the analysis around statutory versus common-law causes of action and the proper Article I, section 17 framework for evaluating legislative damages limits.

Klutschkowski v. PeaceHealth (2012)

A birth-injury case involving severe permanent injury to a child during delivery. The Oregon Supreme Court extended the Lakin analysis into the medical-malpractice context and reinforced that the cap could not be applied to reduce a jury's noneconomic award in a common-law negligence case for injury to a living plaintiff. Klutschkowski was the most direct medical-malpractice application of the cap analysis prior to Busch and made clear that the constitutional defect identified in Lakin extended fully to malpractice cases.

Busch v. McInnis Waste Systems (2020)

The Oregon Supreme Court's most recent and most categorical statement of the cap's unconstitutionality. Scott Busch sustained severe injuries when struck by a garbage truck. The jury returned a $10.5 million noneconomic award. The trial court reduced the award to $500,000 under ORS 31.710. The Supreme Court reversed, holding the cap unconstitutional as applied to Busch's common-law negligence claim. Busch addressed and rejected the defense argument that intervening legislative and constitutional developments had altered the Lakin analysis. The decision left the statutory text of ORS 31.710 in place but rendered it effectively inoperative in most non-wrongful-death personal-injury cases.

2021 legislative response

Following Busch, the 2021 Legislature amended Oregon's noneconomic-damages framework to apply the cap specifically to wrongful-death actions. The theory of the amendment is that wrongful death is a statutory creation under ORS 30.020 rather than a common-law cause of action preserved by Article I, section 17, and is therefore subject to legislative limitation on a different constitutional analysis. The post-2021 framework remains the subject of ongoing litigation, and its application in particular wrongful-death cases continues to be contested.

Where the Law Stands Today

In a non-wrongful-death personal-injury or medical-malpractice case against a private defendant, ORS 31.710 does not functionally limit the noneconomic damages a jury may award. Trial courts following Lakin, Klutschkowski, and Busch will decline to reduce the jury's noneconomic verdict on cap grounds. The statutory text remains, but as applied to common-law tort claims it has been held unconstitutional and is not enforced. 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 more unsettled. The 2021 legislative response reasserted the cap specifically for wrongful-death claims on the theory that wrongful death is a statutory creation under ORS 30.020 rather than a common-law cause of action preserved by Article I, section 17. Whether and how that legislative theory survives future constitutional challenge remains a live question. Damages planning in a wrongful-death case includes the cap analysis as one of several material variables.

In a case against a public-body defendant — OHSU, a county hospital, a city or county — the constitutional analysis under Article I, section 17 does not control. The Oregon Tort Claims Act cap under ORS 30.272 is a separate statutory limit on recoveries against public bodies, and it remains in force on terms the Oregon Supreme Court has so far sustained. The OTCA cap applies to total damages — economic and noneconomic combined — and is the binding constraint in any case where the defendant is a public body. The distinction between private-party defendants (where the ORS 31.710 history controls) and public-body defendants (where ORS 30.272 controls) is one of the most important front-end analyses in any Oregon serious-injury case.

Punitive damages occupy yet another framework under ORS 31.730, which preserves punitive recovery on a malice or reckless-indifference standard, and allocates a portion of any punitive award to the Oregon Department of Justice criminal-injuries compensation 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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