Thursday, February 28, 2013

New Oregon case affirms treble damages in elder abuse cases.

Under Oregon's elder abuse laws, an abused elder who receives a damages award from a judge or a jury is entitled to have the amount of the award tripled. The law allowing treble damages has been around for a long time but Oregon's elder law lawyers haven't seen many appellate cases construing the statute. A recent case called Herring v. American Medical Response has added some clarity to this murky area of law.

    The facts off the case are lurid. An emergency medical technician who worked for an ambulance company molested a woman, who was conscious but unable to move or speak, while transporting her to the hospital. The technician was convicted of a crime and the woman sued the ambulance company for "permitting" the abuse of an incapacitated person by employing this particular technician. (He had a history of similar activities.)

    A jury awarded the woman $500,000 in general damages for pain, humiliation and suffering. This award was tripled under the Oregon elder abuse statute. The ambulance company appealed on a variety of grounds and the Oregon Court of Appeals took a look at the treble damages provision in Oregon's elder abuse statute.

    The ambulance company first maintained that the statute should not apply because the injured woman was neither over sixty-five nor permanently disabled. The court rejected that argument, pointing out that the definition of incapacity contained in the elder abuse statute covers not only the elder and permanently disabled, but also people who temporarily lack capacity.

    The company next argued that the damages should not be tripled because to do so violated another Oregon law that limits damages for pain and suffering to a maximum of $500,000. The court held that the jury had awarded exactly $500,000 in pain and suffering damages. The tripling of that amount was done by the judge as he was required to do by a separate statute. The extra million dollars was not damages but more in the nature of a fine.

    The company then argued that the extra million that resulted from tripling the jury award constituted punitive damages. Punitive damages are somewhat disfavored in civil courts because as a general rule punishing citizens is left up to the government, not other citizens. Consequently, there are special rules that apply to punitive damages and normally a portion of any punitive damage award goes to the state. The court rejected the idea that a treble damage award should be subject to any of the limitations applied to punitive damages, stating again that the tripling of damages is a civil penalty.

    The jury had decided not to assess punitive damages against the ambulance company. The jury found no evidence that the ambulance company deserved punishment for its negligence in hiring that technician. The legislature, however, had a different view. It passed a law that makes a any person who permits the abuse of a vulnerable person--even if not actually participating in the abuse--subject to a civil fine in the form of treble damages. Unlike punitive damages, the full amount of that tripled damage award is payable to the plaintiff.

    The case is another encouragement for lawyers like me to find a way, if possible, to transform ordinary negligence cases into elder abuse cases. As one elder law attorney wrote recently about this case: "The floodgates are now open."

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