Klutschkowski v. PeaceHealth

150 September 26, 2013 No. 41

IN THE SUPREME COURT OF THE
STATE OF OREGON

Bobbi KLUTSCHKOWSKI
and Kevin Klutschkowski,
personally and as guardians ad litem for
Braedon Klutschkowski,
a minor child,
Petitioners on Review,
Cross-Respondents on Review,
v.
PEACEHEALTH;
Amy McCarthy;
Center for Women’s Health, P.C.;
Zena I. Monji;
and Zena I. Monji, M.D., P.C.,
Defendants,
and
OREGON MEDICAL GROUP, P.C.,
Respondent on Review,
Cross-Petitioner on Review.
(CC 160615518; CA A138722; SC S059869)

En Banc
On review from the Court of Appeals.*
Argued and submitted September 17, 2012; resubmitted
January 7, 2013.
Kathryn H. Clarke, Portland, argued the cause and
filed the brief for petitioners on review/cross-respondents on
review. With her on the brief were Richard M. Rogers and
Patrick L. Block, Portland.
Matthew J. Kalmanson and Janet M. Schroer, Hart
Wagner LLP, Portland, argued the cause and filed the briefs
for respondent on review/cross-petitioner on review. With
them on the briefs was Marjorie A. Speirs.
______________
*  Appeal from Lane County Circuit Court, Karsten H. Rasmussen, Judge.
245 Or App 524, 263 P3d 1130 (2011).
Cite as 354 Or 150 (2013) 151

W. Eugene Hallman, Pendleton, filed the brief for amicus
curiae Oregon Trial Lawyers Association.
KISTLER, J.
The decision of the Court of Appeals is reversed in part
and affirmed in part. The judgment of the circuit court is
affirmed.
Landau, J., concurred and filed an opinion.
In a medical malpractice case involving injuries to a child that occur during
childbirth, defendant objected to jury instructions about informed consent and
corporate liability for the negligence of its employees. Defendant also moved
to impose a statutory cap on noneconomic damages awarded by the jury under
ORS 31.710(1). The trial court used the disputed jury instructions and denied,
on state constitutional grounds, defendant’s motion to impose a statutory cap.
The Court of Appeals held that defendant did not preserve its objections to the
jury instructions because it failed to take exception to them in compliance with
ORCP 59 H and reversed the trial court’s denial of defendant’s motion to impose
the statutory cap. Held: (1) Defendant preserved its objection to the trial court’s
instructional rulings and, in light of defendant’s consistent position throughout
trial and the trial court’s ruling that it would take the parties’ objections as
exceptions, complied with ORCP 59 H; (2) plaintiff’s claim constituted an action
for medical malpractice for which the right to jury trial was customary in 1857;
consequently, ORS 31.710(1), limiting the damages award in this case, violated
Article I, section 17 of the Oregon Constitution.
The decision of the Court of Appeals is reversed in part and affirmed in part.
The judgment of the circuit court is affirmed.
152 Klutschkowski v. PeaceHealth

KISTLER, J.

Plaintiffs brought this medical malpractice action to
recover for injuries that their son sustained during delivery.
On review, the issues are whether ORCP 59 H limits an
appellate court’s ability to review objections to a trial court’s
instructional rulings and whether a statutory cap on noneco-
nomic damages constitutionally can be applied to actions
brought by children injured during birth. The Court of
Appeals held that, because defendant had not excepted to
the trial court’s rulings as ORCP 59 H requires, it could
not seek appellate review of those rulings. Klutschkowski
v. PeaceHealth, 245 Or App 524, 543-44, 263 P3d 1130
(2011). The Court of Appeals also explained that, because
the common law did not recognize a cause of action in
1857 for injuries a child sustained during birth, Article I,
sections 10 and 17, of the Oregon Constitution do not limit
the legislature’s authority to cap the damages resulting
from those injuries; the Court of Appeals accordingly held
that the trial court should have applied a statutory cap to
the jury’s award of noneconomic damages. Id. at 548-49.
We allowed the parties’ cross-petitions for review and now
reverse the Court of Appeals decision to the extent that it
reduced the jury’s award of noneconomic damages.
I
We set out the facts consistently with the jury’s ver-
dict. See Mead v. Legacy Health System, 352 Or 267, 269 n 2,
283 P3d 904 (2012); Delaney v. Taco Time Int’l, 297 Or 10, 12,
681 P2d 114 (1984). Mother and father have four children.
When mother gave birth to her fourth child Braedon, he
sustained an injury to the nerves that control the use of his
arm. That injury is more likely to occur when a condition
known as a shoulder dystocia has occurred during a previous
delivery and when the child’s fetal size exceeds a certain
weight.
A shoulder dystocia occurs when an infant’s shoulder
becomes stuck behind the mother’s pubic bone as the infant
travels down the birth canal. When a shoulder dystocia
occurs, the delivering physician customarily uses one of two
maneuvers (the McRoberts maneuver or the Woods corkscrew
Cite as 354 Or 150 (2013) 153

maneuver) to free the infant’s shoulder and complete the deliv-
ery.1 Those maneuvers and the traction resulting from the
shoulder dystocia can stretch and sometimes injure the
infant’s brachial plexus, a network of nerves that run from
the area of the spine around the infant’s neck and control
the movement of the infant’s arm. Once a shoulder dystocia
has occurred during a delivery, the risk of a brachial plexus
injury in a subsequent delivery increases; it is 10 times more
likely that another shoulder dystocia will occur during a sub-
sequent delivery.
The second factor that increases the risk of a
brachial plexus injury is the infant’s fetal size. An infant
whose fetal size exceeds 3500 to 4000 grams is more likely to
sustain a brachial plexus injury during birth because of the
increased traction that a relatively large infant experiences
as he or she travels through the birth canal. The expert medi-
cal testimony in this case permitted the jury to find that,
when those two risk factors are present, the standard of care
requires an obstetrician to inform an expectant mother of
the risk of a brachial plexus injury if she delivers the child
vaginally and to discuss the option of proceeding with a
caesarian delivery, commonly known as a C-section.
In 1999, mother gave birth to her third child Anna.
When Anna was born, she weighed 4135 grams, and her
delivery was complicated by a shoulder dystocia. Dr. Powell,
the obstetrician who delivered Anna, worked for defendant
Oregon Medical Group (defendant or the Medical Group).
Powell diagnosed the shoulder dystocia but did not mention it
to mother. In the hospital chart, he documented that “[t]here
was a shoulder dystocia [which he] managed by shoulder rota-
tion maneuver with the patient’s hips in a flexed position.”2
Anna did not suffer any injuries as a result of the shoulder
dystocia.
1
  The McRoberts maneuver is performed by flexing the mother’s legs to facili-
tate release of the infant’s shoulder. The Woods corkscrew maneuver requires the
doctor to rotate the infant 180 degrees while the infant is within the birth canal.
2
  There was a dispute at trial whether a shoulder dystocia had, in fact, occurred
during Anna’s delivery or whether the chart notation was an instance in which
Dr. Powell had “overcalled” the condition and used the shoulder rotation and flexed
hip maneuvers only as prophylactic measures. On review, we assume that the jury
resolved that factual dispute consistently with its finding of negligence.
154 Klutschkowski v. PeaceHealth

Five years later, in 2004, mother became pregnant
with her fourth child Braedon. By that time, Powell no longer
worked for the Medical Group, and mother began seeing
a new obstetrician employed by the group, Dr. McCarthy.
When McCarthy began providing prenatal care to mother,
McCarthy reviewed the hospital file from Anna’s delivery in
1999. That file contained Powell’s notation that a shoulder
dystocia had occurred, a notation that McCarthy transferred
to Braedon’s prenatal records. McCarthy, however, did not
tell mother of the increased risk of another shoulder dystocia
and a brachial plexus injury, nor did she discuss with mother
that, because of that risk, she may want to consider a
C-section.
During the third trimester of mother’s pregnancy
with Braedon, McCarthy observed that Braedon was “large
for [his] gestational age.” To determine Braedon’s actual size,
McCarthy ordered an ultrasound, which revealed that
Braedon weighed 3964 grams. Because mother was con-
cerned about the size that Braedon would reach by the time
she went into labor, she asked, and McCarthy agreed, to
induce labor early. However, after receiving the results of
the ultrasound, McCarthy did not tell mother that the
baby’s fetal size increased the risk of a shoulder dystocia
and a brachial plexus injury, even though that risk factor
and the earlier shoulder dystocia were both present. By that
time, McCarthy had forgotten that a shoulder dystocia had
occurred during Anna’s delivery.
Mother went into labor before it was scheduled to
be induced. When she arrived at the hospital, McCarthy
was unavailable; so, Dr. Monji, the on-call obstetrician,
assumed responsibility for delivering Braedon. (Monji was
also an employee of the Medical Group.) When Monji spoke
with mother before the birth, she asked mother whether
there had been any complications in her previous deliveries.
Mother replied that there had not been. Additionally, the
prenatal record that the Medical Group sent to the hospital
did not contain the notation of the earlier shoulder dystocia
or the results of the ultrasound and fetal size determination.
Monji accordingly did not discuss with mother the risks of
proceeding with a vaginal delivery rather than a C-section.
Cite as 354 Or 150 (2013) 155

During Braedon’s delivery, a shoulder dystocia occurred.
According to Monji’s delivery notes, Braedon was delivered
“with a modified McRoberts maneuver.” At one point during
Braedon’s delivery, Monji asked father, who was in the
delivery room, to help “get [mother’s] legs way back,” “up
close to her chest,” a request that was consistent with using a
McRoberts maneuver to deliver Braedon. Father testified at
trial that, at a later point during the delivery, he saw Monji
“plac[e] her hands around Braedon’s [head]—underneath
Braedon’s jaw around his neck, and [she] was pulling.” At
that point, father “thought that maybe something was wrong.”

Braedon was born with bruises on his right arm,
shoulder, and areas of his chest. After the delivery, the range
of motion in his right arm was limited, and he was transferred
to the neonatal intensive care unit for observation. When he
was released from the neonatal unit the next day, Braedon’s
color had substantially returned to normal, but the range
of motion in his right arm remained limited. Braedon was
eventually diagnosed with a brachial plexus injury, an
injury that has substantially impaired Braedon’s use of his
right arm.

Mother and father (plaintiffs) filed this action for
medical malpractice against the Medical Group and various
other defendants.3 Before trial, they amended the complaint
to allege claims against only the Medical Group, Dr. Monji,
and Dr. McCarthy. The day before trial, they dismissed their
claims against Monji and McCarthy, leaving the Medical
Group as the only defendant. Plaintiffs alleged that the
Medical Group was negligent:
“[(1)]  In failing to inform [mother] that the occurrence of
shoulder dystocia in the March 3, 1999, delivery and the
fetal size determination by Dr. McCarthy and by the April
23, 2004, ultrasound increased the risk of shoulder dystocia
occurring in a vaginal delivery of Braedon Klutschkowski;
3
 The third amended complaint named father and mother as plaintiffs, pro-
ceeding personally and as guardians ad litem on behalf of Braedon. That complaint
sought both economic and noneconomic damages to compensate for Braedon’s inju-
ries, as well as noneconomic damages to compensate for mother’s injuries, which
included emotional distress. Only the claim for Braedon’s economic and noneco-
nomic damages was submitted to the jury.
156 Klutschkowski v. PeaceHealth

“[(2)]  In failing to inform [mother] that there was increased
risk of Braedon Klutschkowski suffering a brachial plexus
injury if shoulder dystocia occurred during his delivery;

“[(3)]  In failing to offer [mother] the option of a C-section as
an alternative to a vaginal delivery of Braedon Klutschkowski;

“[(4)]  In failing to document in [mother’s] pregnancy record
for her pregnancy with Braedon Klutschkowski the occur-
rence of shoulder dystocia during the March 3, 1999,
delivery; [and]

“[(5)]  In failing to inform Dr. Monji of the occurrence of the
shoulder dystocia in [mother’s] March 3, 1999, delivery, of
Dr. McCarthy’s assessment of Braedon’s fetal size as large
for gestational age and of the April 23, 2004, ultrasound
documentation of an estimated fetal weight of 3964 g. and
greater than the 97th percentile[.]”

In a separate paragraph of the complaint, plaintiffs alleged
that the Medical Group “did not obtain [mother’s] informed
consent to delay Braedon Klutschkowski’s delivery past [the
date of the ultrasound], and to deliver Braedon Klutschkowski
vaginally rather than by cesarean section.” Finally, plaintiffs
alleged that, as a result of the Medical Group’s negligence
and failure to obtain mother’s informed consent, “Braedon
Klutschkowski suffered permanent and severe birth injuries
when he was born on or about May 2, 2004.”
We discuss below the specific objections and rulings
that have given rise to the petition and cross-petition for
review in this case. At this point, it is sufficient to note that
the jury returned a general verdict, finding that the Medical
Group had been negligent. It awarded plaintiffs $557,881.11
in economic damages and $1,375,000 in noneconomic dam-
ages. After the jury returned its verdict, defendant moved
to impose a $500,000 statutory cap on the jury’s award of
noneconomic damages. Plaintiffs responded that applying
the cap would violate Article I, sections 10 and 17, of the
Oregon Constitution. The trial court denied defendant’s
motion. On appeal, the Court of Appeals reversed the trial
court’s ruling that capping the jury’s award of noneconomic
damages would violate the Oregon Constitution but other-
wise affirmed the trial court’s judgment.
Cite as 354 Or 150 (2013) 157

II
On appeal and again on review, the parties debate
whether the trial court erred in instructing the jury and
whether applying a statutory cap to the jury’s damages
award would violate the Oregon Constitution. We begin with
defendant’s challenges to giving plaintiffs’ requested instruc-
tion on informed consent and to declining to give defendant’s
requested instruction regarding its responsibility for its
employees.
A
Defendant argues initially that the trial court
erred in giving plaintiffs’ requested instruction on informed
consent. Because the Court of Appeals ruled that defendant
did not preserve its objection to that instruction or properly
except to it, we set out defendant’s objections and exception
to the instruction. We then consider whether defendant’s
objections and exception were sufficient to preserve the issue
it sought to raise on appeal. Because we conclude that they
were, we consider finally whether the trial court committed
reversible error in instructing the jury on informed consent.
At multiple points during the trial, the parties dis-
cussed whether and how ORS 677.097, the informed consent
statute, applies to a vaginal delivery. Defendant consistently
took the position that a vaginal delivery is not a “procedure
or treatment” that requires “informed consent” within the
meaning of ORS 677.097.4 In defendant’s view, a vaginal
delivery is the natural consequence of a pregnancy and
will occur without regard to whether the physician seeks or
obtains the mother’s consent. As a result, defendant argued,
the informed consent statute never applies to a vaginal deliv-
ery. Plaintiffs took precisely the opposite position. They
argued that, as a matter of law, the statute always applies to
vaginal deliveries. The trial court, for its part, consistently
expressed its view that whether and how the informed
consent statute applies to vaginal deliveries is a question for
the jury.
4
  ORS 677.097 provides that a physician must describe the “procedure or treat-
ment to be undertaken,” alternatives to the procedure or treatment, and the “risks,
if any, to the procedure or treatment.” Additionally, it specifies what a physician
must do if a patient asks for more information about the procedure or treatment.
158 Klutschkowski v. PeaceHealth

On Monday morning, two days before the trial court
instructed the jury, defendant moved for a directed verdict
on plaintiffs’ informed consent claim, reiterating its position
that the informed consent statute does not apply to vaginal
deliveries. The trial court denied that motion. Immediately
after ruling on that motion, the trial court invited objections
to its proposed instructions. In a colloquy that covers more
than 50 pages of the transcript, both sides raised numerous
objections to the proposed instructions. When they reached
the instruction on informed consent, the court unilaterally
noted the parties’ competing positions and posed a hypo-
thetical to the parties to begin the discussion:
“THE COURT:  A woman shows up. She’s pregnant.
Her first set of options is have the child, not have the child.
She decides on having the child. Everyone, I gather from
the testimony I’m hearing, decides it will be vaginal. That’s
the, for lack of a better term, the default position. Your
position [defendant] is that informed consent is not required
because [a vaginal delivery is] the default position.
“[DEFENSE COUNSEL]:  Right. Yes. I mean, I don’t
know how—let’s assume there’s no—there’s no discussion
at all, and the vaginal birth just occurs. Can the mother
then just sue the doctor because, you know, she—she
experiences complications and then says, hey, you didn’t
tell me a pregnancy was dangerous, you didn’t tell me a
vaginal delivery could cause me problems[.] I wouldn’t have
done it otherwise. I just—it doesn’t follow. There’s—you
can’t obtain informed consent for a vaginal delivery.”
The trial court explained that it had difficulty recon-
ciling defendant’s position that informed consent is never
required and plaintiffs’ position that it is always required.
It asked defense counsel:
“[I]f you take vaginal delivery as a default position, but
[if you do] not automatically assume there’s no informed
consent required [as defendant does], nor automatically
assume that it must be required [as plaintiffs do], then is
the determination of the duty not the jury’s?”
Given that question, defense counsel answered, “It’s the
jury’s. It’s the jury’s determination.” The trial court then
asked, “So, if that’s correct, then does this [instruction on
Cite as 354 Or 150 (2013) 159

informed consent] belong in [the jury instructions] or not?
Because that’s my position.” Defense counsel answered, “No.”
After considering the parties’ objections, the trial
court told the parties that it would take the objections that
they had made on the record as exceptions and that they
need not renew those exceptions after the court instructed
the jury. Specifically, the trial court told the parties:
“All right. I’m going to ask for exceptions after I instruct,
and if you want to just be extra careful with your record,
you can do that, but I’m going to just—I’m going to tell
you now that any disagreement you have on the record or
any disagreement you have by virtue of an instruction you
offered the court that I haven’t given, I will take that right
now as an exception, and I don’t feel the need to add to that.
“The purpose of the change in [ORCP 59] is to articulate [a]
reason that might change my mind. And I spent a couple
weeks thinking about these things, and I know that the
three of you have spent far more than a couple weeks
thinking about these. So I think we’ve had a pretty full
discussion, and I’m comfortable with your record.”

The trial ended two days later on Wednesday. That
morning, the trial court shared a “new version” of the instruc-
tions with the parties. Plaintiffs objected to the new version
of the informed consent instruction because the court “ha[d]
taken out the direct instruction that Oregon Medical Group
had the obligation to obtain her informed consent.” The court
acknowledged that it had taken out “the first paragraph [of
the instruction on informed consent] that I had had before”
and noted plaintiffs’ objection.
Later that day, the court instructed the jury. In its
instructions, the court told the jury that plaintiffs had made
five specific allegations of negligence and then repeated to
the jury, essentially verbatim, the five specifications of
negligence quoted above. The court described what plaintiffs
had to prove to recover on their negligence claim, instructed
the jury on foreseeability, and also instructed on the stan-
dard of care. It then turned to informed consent. The
instruction on informed consent divides into two parts. The
first part, which we do not quote in full, told the jury what
160 Klutschkowski v. PeaceHealth

“a physician must explain” “[t]o obtain the informed consent
of a patient.” The second part of the instruction told the jury:
“A failure to obtain Mrs. Klutschkowski’s informed con-
sent may be considered by you in determining whether or
not defendant was negligent.
“In order to find defendant negligent in failing to
provide informed consent, you must determine that
Mrs. Klutschkowski would not have consented to a vaginal
delivery had all the risks and alternatives you find to be
material been disclosed to her.”
After instructing the jury, the trial court told coun-
sel for both parties that it was “tak[ing] as given all the
exceptions that you *  * have already made” and asked
* 
whether counsel “wish[ed] to make any other exceptions?”
In response to that question, defense counsel identified one
other exception that he did not think he previously had
mentioned. The court noted the exception, and the parties
gave their closing arguments to the jury.
The jury returned a general verdict finding that
defendant was “negligent in one or more ways alleged by plain-
tiffs” and, as noted, awarded plaintiffs $557,881.11 in eco-
nomic damages and $1,375,000 in noneconomic damages.
Defendant appealed, assigning error to the trial court’s
rulings denying its motion for a directed verdict on plain-
tiffs’ informed consent claim and overruling its objection to
instructing the jury on informed consent. On appeal, defen-
dant argued that both rulings were incorrect for the same
reason—the informed consent statute has no application to
a vaginal delivery.
Relying on Shoup v. Wal-Mart Stores, Inc., 335 Or
164, 173-74, 61 P3d 928 (2003), the Court of Appeals held
that defendant had not shown prejudice from any error in
denying its directed verdict motion. Klutschkowski, 245
Or App at 538-39. The Court of Appeals started from the
proposition that plaintiffs’ informed consent claim was
effectively a sixth specification of negligence. Id. Given the
jury’s general verdict, the court reasoned that the jury could
have found defendant negligent based on one or more of the
first five specifications of negligence, which defendant had
not challenged, rather than on the informed consent claim.
Cite as 354 Or 150 (2013) 161

Id. It followed that defendant could not show that any error
in submitting plaintiffs’ informed consent claim to the jury
had prejudiced it. Id. at 539 (citing Shoup, 335 Or at 176).

The Court of Appeals then turned to defendant’s
objection to the instruction on informed consent. It observed
that ORCP 59 H(1) provides that “[a] party may not obtain
review on appeal of an asserted error by a trial court * * * in
giving or refusing to give an instruction to the jury” unless
the party challenging the trial court’s instructional ruling
has “identified the asserted error to the trial court and made a
notation of exception immediately after the court instructed
the jury.” The court also observed that ORCP 59 H(2)
requires that the exception be “state[d] with particularity.”

The court reasoned that ORCP 59 H barred defen-
dant’s challenge to the instruction on informed consent
because defendant had not excepted with particularity to
that instruction. 245 Or App at 543-44. The court recognized
that a party could comply with ORCP 59 H by incorporating
an earlier objection by reference. Id. at 540-41. However, the
Court of Appeals explained that, in this case, it could not tell
whether the terms of the trial court’s proposed instructions
had changed between Monday (the day that defendant had
objected to the instruction on informed consent) and
Wednesday (the day that the trial court had instructed the
jury) in such a way that defendant’s earlier objection no
longer applied. Id. at 543.

The Court of Appeals identified an additional rea-
son for not reaching the merits of defendant’s objection. It
explained that, in the trial court, defendant’s objection to
instructing the jury on informed consent had turned on
whether “the particular facts of this case required [defendant]
to inform [mother] about [the] risks of and alternatives to
delivering Braedon vaginally.” Id. (emphasis in original).
Given that view of defendant’s trial position, the Court of
Appeals concluded that defendant’s argument on appeal—
“that no instruction on informed consent should have been
given because, as a matter of law, informed consent was
inapposite—was unpreserved for appellate review.” Id. at
543-44 (emphasis in original).
162 Klutschkowski v. PeaceHealth

On review, defendant argues that, in promulgating
ORCP 59 H, the Council on Court Procedures had neither the
authority nor the intent to limit the appellate courts’ ability
to review a trial court’s rulings on instructions. We need
not resolve that issue; even if ORCP 59 H prescribes what
a party must do to perfect an objection to an instructional
ruling, defendant complied with that rule. Before explaining
why we reach that conclusion, it is perhaps helpful to start
with the Court of Appeals’ alternative holding that defendant
did not preserve the issue it sought to raise on appeal—that
informed consent never applies to a vaginal delivery.
The Court of Appeals stated that, in light of the
trial court’s colloquy with defense counsel, “the [trial] court
understood that whether informed consent was required
in this case was a jury question—an understanding with
which [defendant’s] counsel agreed.” 245 Or App at 534. The
Court of Appeals based its understanding of defendant’s
trial position on the colloquy quoted above. See id. at 534 n 9
(quoting that colloquy as the basis for the court’s statement).
In that colloquy, the trial court asked defense counsel:
“If you take vaginal delivery as a default position, but [do]
not automatically assume that therefore there’s no informed
consent required, nor automatically assume that [informed
consent] must be required, then is the determination of the
duty not the jury’s?”
Defense counsel replied, “It’s the jury’s. It’s the jury’s deter-
mination.”
The trial court’s question asked defense counsel to
“not automatically assume that *  * there’s no informed
* 
consent required.” The question thus assumed away defen-
dant’s position that informed consent is never required for
vaginal deliveries. Defense counsel’s answer was responsive
to the question the trial court put to him, but it did not
signal that defense counsel was somehow abandoning the
position that defendant consistently had taken throughout
the trial. Were there any doubt about the matter, imme-
diately after defense counsel stated, “It’s the jury’s deter-
mination,” the trial court asked, “So, if that’s correct, then
does this [instruction on informed consent] belong in [the
jury instructions] or not? Because that’s my position [that
Cite as 354 Or 150 (2013) 163

it does].” Defense counsel responded, “No.” Defendant pre-
served the issue that it sought to raise on appeal—that
informed consent never applies to vaginal deliveries.

Having concluded that defendant preserved its objec-
tion, we turn to the question whether defendant’s exception
after the trial court gave its instructions complied with
ORCP 59 H. As noted, the trial court told the parties that
it understood their positions on informed consent and that
it would take the objections that they had raised to its
proposed instructions as exceptions. Later, after instructing
the jury, the court told the parties that it was “tak[ing] as
given all the exceptions that you *  * have already made”
* 
and asked whether the parties had “any other” exceptions.
The effect of the trial court’s statement was to incorporate
by reference defendant’s earlier objections as exceptions to
the instructions the trial court just gave.

This court has explained that the purpose of ORCP
59 H is to “inform the trial court that the instruction may
be erroneous and to give the court an opportunity to make
corrections.” Delaney, 297 Or at 18; see also Jett v. Ford Motor
Co., 335 Or 493, 502-03, 72 P3d 71 (2003). Exceptions must
be stated with enough particularity “to apprise the trial
court that it was erroneously explaining [the law] to the
jury.” State v. Crosby, 342 Or 419, 427, 154 P3d 97 (2007).
The exception in this case satisfied that standard.

Defendant consistently and repeatedly took the
position that, as a matter of law, a vaginal delivery is not a
“procedure or treatment” that requires consent within the
meaning of the informed consent statute. When the trial
court stated that it was “tak[ing] as given all the exceptions
that you *  * have already made,” that statement was suf-
* 
ficient to incorporate by reference defendant’s objection to
instructing the jury on informed consent. In light of the
trial court’s earlier statement that it would take the parties’
objections as exceptions, defendant did not need to do any-
thing more to put the court on notice of its continued
position that any instruction on informed consent was error.
See Delaney, 297 Or at 18 (stating the purpose for taking
exceptions).
164 Klutschkowski v. PeaceHealth

We appreciate the Court of Appeals’ concern that,
when a trial court has repeatedly modified its instructions
in response to a party’s shifting objections, an exception
“for the reasons previously stated” may not put a trial court
on notice of which objection or objections the party still
believes are germane. In this case, however, defendant’s
position—that informed consent never applies to vaginal
deliveries—was consistent throughout the trial. Not only
was the trial court well aware of the basis for defendant’s
objection to its informed consent instruction, but it also
was well aware that the only modification that would have
satisfied defendant’s objection would have been to omit any
reference to informed consent altogether, which it did not do.
In those circumstances, defendant’s exception complied with
ORCP 59 H.

Turning to the merits of defendant’s objection, we
note that defendant did not object at trial to the informed
consent instruction on the ground that it inaccurately
stated the law. Rather, defendant objected to the instruction
for the same reason that it had moved for a directed verdict.
In defendant’s view, informed consent has no application to
a vaginal delivery, and any claim based on informed consent
should not be submitted to the jury. Similarly, in its brief
in the Court of Appeals, defendant equated its motion for
a directed verdict and its objection to the instruction on
informed consent. In defendant’s view, the trial court’s rul-
ings on its directed verdict motion and its objection suffered
from the same infirmity: both put before the jury a theory of
liability that should never have been submitted to it.

In this posture, we think that the same answer
applies to both rulings. Under Shoup, even if the trial court
erred in submitting that theory of liability to the jury,
defendant failed to show that doing so prejudiced it. As the
Court of Appeals reasoned, the trial court instructed the
jury on five specifications of negligence to which defendant
raised no objection. It also instructed the jury on what the
Court of Appeals characterized as a sixth specification of
negligence. Without a special verdict identifying which speci-
fication or specifications gave rise to the jury’s finding of
Cite as 354 Or 150 (2013) 165

negligence, we cannot say that any error in submitting the
informed consent specification prejudiced defendant.

Our decision in Wallach v. Allstate Ins. Co., 344
Or 314, 180 P3d 19 (2008), is not to the contrary. In that
case, the trial court incorrectly instructed the jury on how
to allocate damages among successive tortfeasors; that is,
the instruction gave the jury the wrong legal rule to decide
an issue that everyone agreed was properly before the jury.
See id. at 320-21. As noted, defendant has not argued that
the instruction on informed consent incorrectly stated the
law. Rather, defendant’s objection to instructing the jury on
informed consent was the functional equivalent of its motion
for a directed verdict on that claim. Both sought to take the
issue away from the jury. On review, defendant does not dis-
pute that the Court of Appeals correctly held that, under
Shoup, it failed to prove that any error in denying its directed
verdict motion prejudiced it. The same conclusion applies
equally to its objection to instructing the jury on informed
consent.
B
We turn to defendant’s remaining claim of instruc-
tional error. Before trial, plaintiffs dismissed their claims
against all defendants except the Medical Group. In explain-
ing the acts for which the Medical Group could be held liable,
the trial court instructed the jury:
“In this case, Oregon Medical Group is the defendant. A
corporation can act only through its agents or employees.
Any action by the agent or employee of the corporation is
the act of that corporation. I instruct you that Dr. McCarthy
and Dr. Monji were the agents and employees of Oregon
Medical Group.”

Before the trial court, defendant argued that the court’s
proposed instruction was accurate but incomplete. Defen-
dant observed that there was evidence that Dr. Powell was
also an employee of the Medical Group, and it reasoned that
the trial court’s instructions permitted the jury to find the
Medical Group liable for any negligence on Powell’s part,
even though the statute of ultimate repose barred any claim
166 Klutschkowski v. PeaceHealth

against defendant based on Powell’s actions.5 To prevent
the jury from holding it liable for any negligence on Powell’s
part, defendant requested the following instruction:
“There are no allegations of negligence against either
Dr. Powell or Sacred Heart Hospital, and plaintiffs are not
claiming either Dr. Powell or Sacred Heart Hospital vio-
lated the applicable standard of care in any way.”6
After an extensive colloquy on Wednesday morning in which
defendant repeatedly stated its position that the trial court’s
proposed instruction was incomplete, the trial court declined
to supplement its instruction with defendant’s requested
instruction.
On appeal, defendant assigned error to the trial
court’s ruling declining to give its requested instruction;
defendant argued that the ruling constituted reversible
error because it “created an erroneous impression of the law
in the minds of the members of the jury[.]” See Hernandez
v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998).
Plaintiffs responded that defendant’s requested instruction
was not necessary to explain a material issue and that the
instructions the trial court gave explained fully the specific
allegations of negligence that plaintiffs were required to
prove. The Court of Appeals affirmed the trial court’s ruling
without discussion. Klutschkowski, 245 Or App at 537.
On review, defendant renews its argument that the
trial court erred in failing to give its requested instruction.
To the extent that the Court of Appeals declined to review
defendant’s assignment of error because defendant had not
properly excepted to the trial court’s failure to give its
requested instruction, the Court of Appeals erred for the rea-
sons stated above. The colloquy between the trial court and
defense counsel after the trial court instructed the jury was suf-
ficient to incorporate by reference defendant’s earlier objec-
tion. We accordingly turn to the merits of defendant’s objection.
5
  Powell had been an employee of the Medical Group when he delivered Anna
in 1999; plaintiffs have not disputed that ORS 12.110(4) barred a negligence claim
against defendant because of any actions or omissions on Powell’s part.
6
  The Medical Group did not explain why its requested instruction included the
actions of Sacred Heart Hospital, which was dismissed as a defendant.
Cite as 354 Or 150 (2013) 167

Read in isolation, the trial court’s instruction that a
corporation is liable for the negligence of its employees posed
a risk that the jury could find defendant liable for Powell’s
negligent acts or omissions. Powell had been an employee
of the Medical Group when he delivered Anna in 1999,
and nothing in the instructions stating that the Medical
Group was liable for its employees’ actions precluded the jury
from looking to Powell’s actions in 1999 as a source of
defendant’s liability. Affirmatively instructing the jury that
Drs. McCarthy and Monji were defendant’s employees did not
preclude the jury from finding that Powell was also defen-
dant’s employee.
Plaintiffs argue, however, that the specifications
of negligence that the trial court read to the jury as part
of its instructions effectively limited the jury to finding
defendant negligent based on the actions of McCarthy and
Monji. We agree. Those specifications alleged that defendant
was negligent in its conduct during mother’s pregnancy with
Braedon, not in its conduct during her earlier pregnancies.7
In Hernandez, we explained that a trial court’s refusal to
give a party’s requested instruction is not reversible error “if
the substance of the requested instruction, even if correct,
was covered fully by other jury instructions given by the
trial court.” 327 Or at 106. Read as a whole, the instructions
that the trial court gave fully conveyed the substance of the
requested instruction; put differently, we cannot say that
the trial court’s instructions, read as a whole, “created an
erroneous impression of law in the minds of the members of
the jury[.]” See id.
III
Having addressed the instructional issues raised in
defendant’s cross-petition for review, we turn to the consti-
tutional issue raised in plaintiffs’ petition for review. After
the jury returned its verdict, defendant moved to cap the
7
 The first, second, third, and fourth specifications of negligence, which the
trial court read to the jury, refer to specific actions or omissions regarding either
Braedon’s delivery or the failure to inform mother of risk factors regarding
Braedon’s delivery. The fifth specification refers to the failure to inform Dr. Monji
of certain information. Finally, the informed consent instruction, read in context,
refers to the failure to inform mother of the risks of and alternatives to delivering
Braedon vaginally.
168 Klutschkowski v. PeaceHealth

noneconomic damages that the jury had awarded. See ORS
31.710(1) (imposing a $500,000 cap on noneconomic dam-
ages). Plaintiffs responded that applying the cap would
violate their right to a remedy under Article I, section 10,
of the Oregon Constitution8 and their right to a jury trial
under Article I, section 17, and Article VII (Amended),
section 3.9 Under our decisions, the initial question that
plaintiffs’ constitutional claims raise is whether the common
law recognized a right to recover for prenatal injuries when
Oregon adopted its constitution in 1857. See Smothers v.
Gresham Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001)
(Article I, section 10); Hughes v. PeaceHealth, 344 Or 142,
156, 178 P3d 225 (2008) (Article I, section 17). If it did, then
Article I, sections 10 and 17, limit the legislature’s authority
to modify plaintiffs’ cause of action for medical malpractice
and to reduce the jury’s damages award. See Smothers, 332
Or at 124 (so holding); Hughes, 344 Or at 156 (same).

Before the trial court, the parties focused on a Court
of Appeals decision, Christiansen v. Providence Health System,
210 Or App 290, 202, 150 P3d 50 (2006), aff’d on other
grounds, 344 Or 445, 184 P3d 1121 (2008), which had held
that, when Oregon adopted its constitution in 1857, the
common law did not recognize an infant’s right to recover for
prenatal injuries. Defendant took the position that, under
Christiansen, all injuries that occur before an infant emerges
completely from his or her mother’s body are prenatal. Plain-
tiffs took the position that the phrase “prenatal injuries”
means injuries that occur while the child is in the mother’s
womb but does not include injuries that occur while the
child is in the birth canal. After considering the parties’
arguments and the evidence presented at trial, the trial

8
  Article I, section 10, provides:
“No court shall be secret, but justice shall be administered, openly and without
purchase, completely and without delay, and every man shall have remedy by
due course of law for injury done him in his person, property, or reputation.”
9
 Article I, section 17, provides: “In all civil cases the right of Trial by Jury
shall remain inviolate.” Article VII (Amended), section 3, provides, in part:
“In actions at law, where the value in controversy shall exceed $750, the right
of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise
re-examined in any court of this state, unless the court can affirmatively say
there is no evidence to support the verdict.”
Cite as 354 Or 150 (2013) 169

court denied defendant’s motion and entered judgment for
the full amount of the damages that the jury had awarded.
On appeal, the Court of Appeals interpreted its deci-
sion in Christiansen as holding that “a claim for prenatal
injuries—including those that occur during birth—did not
exist at the time that the Oregon Constitution was adopted.”
Klutschkowski, 245 Or App at 546. Because Braedon’s
injuries had occurred during birth, the Court of Appeals held
that, under Smothers, Hughes, and Christiansen, plaintiffs’
constitutional challenges to capping the jury’s award of
noneconomic damages necessarily failed. Id. at 546-47.10
The Court of Appeals accordingly reversed the trial court’s
judgment to the extent it included all the noneconomic
damages the jury had awarded.
In this case, neither party has asked us to reconsider
our decisions under Article I, section 10, or Article I, section
17. That is, both parties accept that the common law, as
it existed in 1857, is the initial measure of the rights that
Article I, sections 10 and 17, grant.11 The constitutional
question raised by plaintiffs’ petition for review accordingly
reduces to whether, in 1857, the common law recognized a
claim for the type of injuries that occurred in this case.
To put that question in context, it is helpful to
recount both the nature of plaintiff’s claim for negligence
and also the facts that bear on when the injury to Braedon
occurred. Essentially, plaintiffs’ third amended complaint
alleged that, at various points during mother’s pregnancy,
defendant negligently failed to inform her that the baby
could experience a shoulder dystocia and a brachial plexus
injury during a vaginal delivery and that she could choose
a C-section instead. Although the negligent omissions that
10
  Oregon has recognized a common-law right to recover for prenatal injuries
since 1955. See Mallison v. Pomeroy, 205 Or 690, 291 P2d 225 (1955). The state
of the common law when Oregon adopted its constitution in 1857 is relevant
only because, under Smothers and Hughes, that issue bears on whether Article I,
sections 10 and 17, limit the legislature’s authority to alter a cause of action or
reduce the amount of a jury award.
11
  Plaintiffs recognize that the common law, as it existed in 1857, is the initial
measure of those rights but argue that we should hold that Article I, section 10,
protects common-law causes of action not only as they existed in 1857 but also as
those causes of action have evolved over time. Given our disposition of plaintiffs’
claim, we need not consider plaintiffs’ argument and express no opinion on it.
170 Klutschkowski v. PeaceHealth

gave rise to plaintiffs’ claim occurred at one or more points
during mother’s pregnancy, the harm that made plaintiffs’
claim actionable could and did manifest itself only during
delivery and, in this case, resulted in physical injuries only
to Braedon. Cf. Lowe v. Philip Morris USA, 344 Or 403, 410-
11, 183 P3d 181 (2008) (a plaintiff must allege and prove an
actual loss or harm to make out a claim for negligence). Put
differently, even though the negligent omissions were sep-
arated in time from the injuries that Braedon sustained,
those injuries were the direct and foreseeable consequence
of defendant’s earlier failure to warn mother of the risks
that, in her case, a vaginal delivery posed to her child.

Moreover, the trial court reasonably could have found
that the injury to Braedon occurred, to use Dr. Monji’s words,
after Braedon’s head had been delivered.12 On that issue,
one doctor testified, to a reasonable medical probability,
that a shoulder dystocia had occurred when Monji delivered
Braedon. Other doctors testified that, when a shoulder
dystocia occurs (when the baby’s anterior shoulder gets
stuck behind the mother’s pubic bone), the baby’s head
typically will have emerged from the mother’s body. Father
testified that his observations in the delivery room were
consistent with Monji’s deposition testimony—namely, that
she employed a McRoberts maneuver “only after the delivery
of Braedon’s head.” In a related vein, father told mother that,
after Braedon’s head had emerged, Monji put her hands
around Braedon’s head and “was pulling very forcibly, and
seem[ed] like she was stretching Braedon’s neck.”13 Given
that evidence, the trial court reasonably could have found
that a shoulder dystocia occurred, with a resulting brachial
plexus injury, after the delivery of Braedon’s head.
12
  In deciding defendant’s post-verdict motion to cap the noneconomic damages
and plaintiffs’ constitutional objection to that motion, the trial court considered
the parties’ arguments as to when the injury to Braedon occurred. We state the
facts consistently with the trial court’s post-verdict ruling—namely, in the light
most favorable to plaintiffs.
13
  As defendant notes, plaintiffs dismissed their claim that Monji caused the
injury to Braedon’s arm by negligently pulling on his head. We quote father’s
statements to mother only as evidence from which the trial court could have found
that the risk that defendant negligently failed to warn mother about—a shoulder
dystocia and a resulting brachial plexus injury—occurred after Braedon’s head
had emerged from his mother’s body.
Cite as 354 Or 150 (2013) 171

With those facts in mind, we turn to the state of
the common law when Oregon adopted its constitution in
1857. The common law has recognized a cause of action
for negligence since at least the time of the American
Revolution. Smothers, 332 Or at 129. Similarly, a cause of
action for medical malpractice preexisted the adoption of
the Oregon Constitution. See, e.g., Mead v. Legacy Health
System, 352 Or 267, 276 n 7, 283 P3d 904 (2012) (discussing
the sources of medical malpractice actions); see also William
Blackstone, 3 Commentaries on the Laws of England 122
(1768).14 Because plaintiffs seek to recover for the negligence
and malpractice of defendant’s employees, it appears, at first
blush, that plaintiffs are entitled to the protections of Article I,
sections 10 and 17.

Defendant argues, however, that an exception to
those general principles existed in 1857. Defendant relies on
two cases, one from Massachusetts in 1884 and another from
Illinois in 1900, for the proposition that, in 1857, an infant
had no cause of action for prenatal injuries. See Dietrich v.
Northampton, 138 Mass 14 (1884); Allaire v. St. Luke’s Hosp.,
184 Ill 359, 56 NE 638 (1900). We turn to those cases to
determine the extent to which they carve out an exception
from the general principle that negligence and medical
malpractice were recognized causes of action in 1857.

In Dietrich, the mother was four to five months preg-
nant when she slipped on a defect in a town highway and
fell. 138 Mass at 14. The fall brought on a miscarriage, and
the infant survived its premature birth only briefly. Id. at
15. When the administrator of the child’s estate brought
a claim against the town for negligently maintaining the
highway, the court dismissed the claim on the ground that
the common law did not recognize a civil cause of action for
injuries “received by [a child] while in its mother’s womb.” Id.
14
  Blackstone notes:
“[I]t hath been solemnly resolved, that mala praxis is a great misdemeanor
and offence at common law, whether it be for curiosity and experiment, or by
neglect; because it breaks the trust which the party had placed in his physician,
and tends to the patient’s destruction. Thus also, in the civil law, neglect or
want of skill in physicians and surgeons[.]”
William Blackstone, 3 Commentaries on the Laws of England 122 (1768).
172 Klutschkowski v. PeaceHealth

In reaching that conclusion, the court focused
primarily on distinguishing English authorities that had
recognized criminal liability for injurious acts directed at
an unborn child and also certain property rights in unborn
children. Id. at 15-17. Essentially, the court explained that
the reasons for imposing criminal liability for injuring
unborn children and for recognizing certain property rights
in unborn children did not warrant extending civil lia-
bility for a negligent breach of the general standard of care.
Id. Beyond that, the court offered three reasons for not
recognizing a cause of action for negligence. It noted initially
that “no case, so far as we know, has ever decided that, if
the infant survived, it could maintain an action for injuries
received by it while in its mother’s womb.” Id. at 15.15 It held
out the possibility that any injury to a fetus that resulted
from a negligent injury to the mother was too remote to be
recoverable. Id. at 16-17. Finally, it reasoned that, “as the
unborn child was a part of the mother at the time of the
injury, any damage to it which was not too remote to be
recovered for at all was recoverable by her.” Id. at 17.
The facts in Allaire were essentially the same as
those in Dietrich. The mother in Allaire suffered an injury
during the course of her pregnancy as the result of an accident,
and the physical injury to the mother had a consequential
effect on the health of the child. See Allaire, 184 Ill at 361-
62.16 As the court phrased the issue in Allaire, the question
was whether the child, “at the time of the alleged injury, in
contemplation of the common law, [had] such distinct and
independent existence that he may maintain the action, or
was he, in the view of the common law, a part of his mother.”
Id. at 365. The court stated that, if the injury occurred
while the child was part of the mother, the child could not

15
  Because the child in Dietrich had been born alive, the court did not invoke
common-law cases for the proposition that a stillborn child does not have a civil
cause of action, nor did the court invoke the common-law rule that a tort claim
does not survive the decedent’s death, cf. Hughes, 344 Or at 152 (reasoning that, in
1857, the common law did not recognize wrongful death actions).
16
 The complaint in Allaire alleged that the mother had gone to a hospital
10 days before the expected birth of her child. While riding in an unenclosed ele-
vator, she suffered an accidental injury, and the injury to the mother resulted in a
consequential injury to the fetus, which was delivered sometime after the injury to
the mother.
Cite as 354 Or 150 (2013) 173

maintain an action. The court explained that, “if [the child
was] a part of his mother [when the injury occurred, then]
the injury was to her and not to the [child].” Id.
In considering that issue, the court quoted the pas-
sage from Dietrich that explained that, because the unborn
child was part of the mother, “any damage to [the child] which
was not too remote to be recovered for at all was recoverable
by her.” See id. at 366 (quoting Dietrich, 138 Mass at 17).
The court also cited a case from the Irish courts, Walker
v. Great Northern Railway Co., 28 LR Ir 69 (1890), which
had held that a child had no cause of action for a railroad’s
negligence because the railroad owed a duty to the mother
but not to her unborn child. See Allaire, 184 Ill at 366.17
Having noted the rationales in both Dietrich and Walker,
the court in Allaire took a more categorical approach to the
issue. It asked whether the child was “part of the mother”
when the injury occurred, and it answered that question by
positing “[t]hat a child before birth is, in fact, a part of the
mother and is only severed from her at birth.” Id. at 368.
Because the child in Allaire had been part of the mother at
the time of the injury, the court concluded that the child had
no cause of action against the defendant.
The question in both Dietrich and Allaire was
whether a child could bring a cause of action for a neg-
ligently inflicted injury to its mother during the course of
her pregnancy that resulted in a consequential injury to
what was, at the time of the injury, a fetus.18 Neither case
presented the issue that this case does; that is, neither case
addressed whether a defendant’s negligence that directly
17
 In Walker, the mother was injured as a result of the railroad’s negligence,
with consequential injuries to the child she was carrying. In a series of seriatim
opinions, the court held that the child, once born, had no cause of action against
the railroad. The common rationale was that the railroad owed a duty only to the
mother, the person whom it had contracted to carry, and, as a result, owed no duty
to the unborn child.
18
  The decisions from other states that followed Dietrich and Allaire arose out
of a similar fact pattern. All the cases address negligently inflicted injuries to the
mother during the course of the pregnancy that had a consequential effect on the
fetus. See, e.g., Buel v. United Rys. Co., 248 Mo 126, 154 SW 71 (1913); Nugent v.
Brooklyn Heights R.R., 154 AD 667, 139 NYS 367 (1913); Lipps v. Milwaukee Elec.
Ry., 164 Wis 272, 159 NW 916 (1916); Drobner v. Peters, 194 AD 696, 186 NYS 278
(1921). See generally David A. Gordon, The Unborn Plaintiff, 63 Mich L rev 579
(1965).
174 Klutschkowski v. PeaceHealth

causes an independent physical injury to the child during
delivery was actionable at common law. Both the timing
of the injury and the relationship between the defendant’s
negligence and the injury distinguish this case from Dietrich
and Allaire. On the first point, we note that the injury that
Braedon sustained did not occur while he was in his mother’s
womb. Not only had delivery begun when Braedon suffered
an injury as a result of defendant’s negligence, but the trial
court could have found that Braedon’s head had emerged
from his mother’s body when the injury occurred. Simply as
a matter of categorization, it is difficult to say that Braedon
was “part of the mother” at the time of the injury.
Additionally, the considerations that underlay the
categorization that Dietrich invoked and on which Allaire
placed greater reliance—that the child was “part of the
mother” at the time of the injury—are absent here. This is not
a case in which the harm that Braedon sustained as a result
of defendant’s negligence was too remote to be actionable,
as the court concluded the child’s injury was in Dietrich.
Rather, as explained above, the direct and foreseeable con-
sequence of defendant’s earlier failure to advise mother of
the risks of a vaginal delivery was that Braedon’s shoulder
would become stuck behind his mother’s pubic bone during
delivery and that he would suffer a brachial plexus injury as
a result. Similarly, this is not a case in which, as in Walker,
the defendant owed no duty to Braedon. It would be difficult
to say that the obstetrician, who at the time of Braedon’s
injury held his head in the palms of her hands, owed no duty
of care to him. See Mead, 352 Or at 277 (describing when
a physician ordinarily owes a duty of care to a patient).
Finally, defendant’s negligence resulted in a physical injury
only to Braedon, and not to his mother. Without a physical
injury to the mother, it is difficult to bring this case within
the reasoning of Allaire, which appeared to view the fact
that the “injury was to [the mother] and not to [the child]”
as synonymous with its conclusion that the child was “part
of the mother” when the injury occurred. See Allaire, 184 Ill
at 365.
To the extent that Dietrich and Allaire carve out an
exception from the general principle that actions for negligence
Cite as 354 Or 150 (2013) 175

and medical malpractice were recognized causes of action
when Oregon adopted its constitution in 1857, they carve out
an exception for negligent acts that cause physical injury to
the mother and a consequential injury to the fetus during the
course of the mother’s pregnancy. The injury that occurred
here does not come within the scope of the exception those
cases recognized.
One final point deserves mention. The Oregon Court
of Appeals held in Christiansen that, in 1857, the common law
did not recognize an action for injuries an infant sustained
during delivery. See 210 Or App at 292, 302. Defendant com-
mends Christiansen’s holding to us and quotes a passage
from that decision in support of its position in this case.
The difficulty with defendant’s reliance on that passage is
that the sources Christiansen cited in that passage do not do
support the conclusion it reached.
The passage from Christiansen on which defendant
relies cites two sources. See 210 Or App at 298. The first is
Allaire, which we have already discussed. Id. The second is a
1971 annotation in the American Law Reports. Specifically,
Christiansen cited two sections of that annotation for the
proposition that an injury that occurs during delivery was
not actionable in 1857. See id. (citing Roland F. Chase,
Annotation, Liability for Prenatal Injuries, 40 ALR 3d 1222
§ 1[a] n 5, § 2[a] (1971)). The first section that Christiansen
cited merely defines the scope of the annotation, which
surveys cases from 1884 to 1971. See 40 ALR 3d 1222 § 1[a]
n 5. That section does not purport to describe the injuries
that were actionable in the nineteenth century. The second
section of the annotation that Christiansen cited discusses
briefly the “[h]istorical development of law of prenatal
injuries.” Id. § 2[a]. That section of the annotation describes
the holdings in Dietrich and Allaire, but does not say that
those decisions apply to injuries that a child sustains inde-
pendently during delivery. In our view, the passage on which
defendant relies provides no persuasive support for the
conclusion that Christiansen reached and that defendant
urges us to adopt.
We assume, for the purposes of deciding this case,
that Dietrich and Allaire carve out an exception to the
176 Klutschkowski v. PeaceHealth

general principle that negligence and medical malpractice
were recognized causes of action in 1857; that is, we assume
that those decisions stand for the proposition that, in 1857,
a child would not have had a cause of action for physical
injuries to the mother during the course of her pregnancy
that resulted from a breach of the general standard of due
care and that had only a consequential effect on what was,
at the time of the injury, a fetus. Those decisions, however,
do not stand for the proposition that a defendant’s negligence
that directly causes a physical injury only or primarily to
the child during delivery was not actionable at common law.
Those decisions neither address that issue nor provide a
basis for saying that that class of cases was excepted from
the general rule that negligence and medical malpractice
were recognized causes of action in 1857 for which a jury
trial was available.19
We acknowledge, as we must, that neither party
has cited any nineteenth-century case that addresses the
specific question that this case presents, nor have we found
any. That is, we are not aware of any nineteenth-century
case that discusses one way or the other whether a child
could maintain a cause of action for medical malpractice
for independent physical injuries that the child sustains
during delivery as a direct consequence of the defendant’s
acts or omissions. Whatever the reason for that absence
of authority, our precedents require us to decide whether
a cause of action for the injuries Braedon sustained was
recognized in 1857. Faced with that question, we follow the
general principle that actions for medical malpractice and
negligence were recognized in 1857 unless we are persuaded
that an action comes within an exception to that rule. For
the reasons explained above, we are not persuaded that the
injuries that Braedon sustained come within the exception
that defendant has identified.
Having decided that question, we turn to our cases
under Article I, section 17, to resolve this case. In Lakin v.
19
  In holding that the common law would have recognized a cause of action for
the injuries that Braedon sustained, we do not imply that, in 1857, the common
law also would have recognized a cause of action for an infant who was stillborn
or who died as a result of the defendant’s actions. See n 15 above. That issue is not
before us, and we express no opinion on it.
Cite as 354 Or 150 (2013) 177

Senco Products Inc., 329 Or 62, 78, 987 P2d 463 (1999), the
court held that applying a legislative cap to reduce a jury’s
determination of noneconomic damages violates Article I,
section 17, in “civil cases in which the right to jury trial was
customary in 1857.” Although the court has stated, since
Lakin, that “Article I, section 17, is not a source of law that
creates or retains a substantive claim or a theory of recovery
in favor of any party,” see Jensen v. Whitlow, 334 Or 412,
422, 51 P3d 599 (2002), we have adhered to Lakin’s holding
that:

“Article I, section 17, guarantees a jury trial in civil actions
for which the common law provided a jury trial when the
Oregon Constitution was adopted in 1857 and in cases of
like nature. In any such case, the trial of all issues of fact
must be by jury. The determination of damages in a personal
injury case is a question of fact. *  * The legislature may
* 
not interfere with the full effect of a jury’s assessment of
noneconomic damages, at least as to civil cases in which
the right to jury trial was customary in 1857[.]”

329 Or at 82.

Because an action for medical malpractice is one 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. See id.; see also
Hughes, 344 Or at 156 (recognizing that Article I, section 17,
prohibits the legislature from modifying jury awards in
actions that were recognized in 1857). It follows that applying
ORS 31.710(1) to the jury’s damages award in this case
violates that constitutional guarantee. Having reached that
conclusion, we need not address plaintiffs’ arguments under
Article I, section 10, or Article VII (Amended), section 3.
Specifically, we need not decide whether, under Howell v.
Boyle, 353 Or 359, 298 P3d 1 (2013), the $500,000 limit on
noneconomic damages provided plaintiffs with a substantial
remedy within the meaning of Article I, section 10.

The decision of the Court of Appeals is reversed in
part and affirmed in part. The judgment of the circuit court
is affirmed.
178 Klutschkowski v. PeaceHealth

LANDAU, J., concurring.
The court’s decision in this case turns on whether
the common law in 1857 would have recognized plaintiff’s
claim. I do not quarrel with that. The sort of imaginative
reconstruction of nineteenth-century case law in which the
court engages is precisely what its precedents require. My
quarrel is with those precedents.
I am skeptical of those precedents in two respects.
First, at a more general level, I contest the notion that this
state’s constitution today means no more than what it meant
in 1857. That proposition is at the core of the controlling
decisions in this case—Smothers v. Gresham Transfer, Inc.,
332 Or 83, 23 P3d 333 (2001), and Hughes v. PeaceHealth,
344 Or 142, 178 P3d 225 (2008), in particular. In my view,
the sort of hyper-originalism that those decisions both
require and purport to reflect is untenable. As I argued in
my concurring opinion in State v. Hemenway, 353 Or 129,
154, 295 P3d 617 (2013), vacated by State v. Hemenway,
353 Or 498, 302 P3d 413 (2013), there is little evidence
that the framers of the Oregon Constitution intended that
their intentions or understandings would be forever con-
trolling. Even assuming that the framers’ intentions or
understandings are controlling, the fact remains that those
intentions or understandings are often unknowable or are
unknown to us. And even in those cases in which they are
known, it is often impossible to apply those intentions or
understandings to modern circumstances without trans-
forming them in ways that would have been utterly foreign
to the framers.
Second, I have my doubts about the controlling
decisions themselves. That is to say, even assuming for the
sake of argument that the Oregon Constitution means only
what it was intended to mean in 1857, I question whether
the framers intended the interpretations that this court
adopted in Smothers and Hughes.
I begin with Smothers. In that case, this court
concluded that the exclusive remedy provision of the state
workers’ compensation statute violated the remedy clause
of Article I, section 10, of the Oregon Constitution. In the
Cite as 354 Or 150 (2013) 179

view of the court, “the drafters of Article I, section 10,
sought to give constitutional protection to absolute rights
respecting person, property, and reputation as those rights
were understood in 1857.” 332 Or at 115. The purpose of
the remedy clause, the court stated, was to preserve from
legislative abolition rights that had become “vested” as of
the time of the adoption of the constitution. Id. at 116.
The court acknowledged that direct evidence of what
the framers of the Oregon Constitution intended “admittedly
is sketchy.” 332 Or at 114. In fact, the court found no dis-
cussion of Article I, section 10, in the records of the
constitutional convention.1 The court nevertheless concluded
that, by the mid-nineteenth century, there had developed a
well-established understanding about what constitutional
remedy guarantees meant, and nothing in the historical
record suggested that the framers of the Oregon Constitution
intended to depart from that understanding. Id.
Based on that historical analysis, the court con-
cluded that, to determine whether a statute violates the
remedy clause guarantee entails a two-part inquiry: To
begin with, it must be determined, “when the drafters wrote
the Oregon Constitution in 1857, did the common law of
Oregon recognize a cause of action for the alleged injury?”
Id. at 124. If the answer to that question is no, the inquiry
1
  The closest thing to direct evidence about the intended meaning of Oregon’s
remedy clause, the court explained, was the rewording of the clause—without
explanation—from the Indiana provision on which it was based. 332 Or at 113-14.
Article I, section 12, of the Indiana Constitution provided:
“All courts shall be open; and every man, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law. Justice
shall be administered freely, and without purchase; completely, and without
denial; speedily, and without delay.”
A committee on the Bill of Rights apparently reworked the phrasing so that Article I,
section 10, of the Oregon Constitution provides:
“No court shall be secret, but justice shall be administered, openly and with-
out purchase, completely and without delay, and every man shall have remedy
by due course of law for injury done him in his person, property, or reputation.”
The court found significant that the revised version “expressed in a separate,
independent clause the guarantee of remedy by due course of law.” 332 Or at 114.
Of course, the remedy guarantee was expressed in a separate, independent clause
in the original Indiana version, as well. The framers of the Oregon version simply
moved the independent clause of the Indiana version to a different place in the
sentence.
180 Klutschkowski v. PeaceHealth

is at an end. If the answer is yes, and the legislature has
abolished that common-law claim, then “the second question
is whether [the legislature] has provided a constitutionally
adequate remedy for the common-law cause of action for that
injury.” Id.
Applying that test to the exclusive remedy statute
at issue, the court in Smothers answered the first question in
the affirmative—that is, the court concluded that, in 1857,
the common law recognized a claim by an employee against
an employer for negligent injury during employment. And it
answered the second question in the negative—that is, the
substitution of workers’ compensation for common-law neg-
ligence claims was constitutionally inadequate because the
more rigorous causation standard that applies to workers’
compensation claims left some claims that would have been
compensable at common law beyond remedy. Id. at 133-34.
The court’s historical analysis is the focus of my
concern. It appears to me that, in a number of important
respects, the court’s analysis in Smothers is difficult to
reconcile with the historical record.
In brief, the court in Smothers traced the origins of
the remedy clause to Magna Carta, as explained by Coke
and Blackstone; as informed by the common-law maxim
ubi jus, ibi remedium (where there is a right, there must be a
remedy); and as taken up by nineteenth-century constitution
framers who were hostile to legislative authority. 332 Or at
94-112. As far as I can tell, pretty much everyone agrees
with the initial proposition that state remedy clauses have
their genesis in section 29 of the 1225 version of Magna
Carta, which provides that,
“No freeman shall be taken, or imprisoned, or be disseised
of his freehold, or liberties, or free customs, or be outlawed,
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.”
So far, so good.
The court gets into trouble, however, in its reading
of Coke’s commentary on the final sentence of Chapter 29.
Cite as 354 Or 150 (2013) 181

According to the Smothers court, “Coke asserted that the
common law of England had come to guarantee every sub-
ject a legal remedy for injury to goods, lands, or person
caused by any other subject.” 332 Or at 96-97. The court
cited no authority for that characterization of Coke’s take on
that portion of Magna Carta. As far as I can tell, there is no
authority for it.
What Coke was writing about was royal—that is,
the king’s—interference with the judiciary. David Schuman,
The Right to a Remedy, 65 Temple L rev 1197, 1200 (1992)
(“At the time of Magna Carta, the evil was corrupt courts.”).
The immediate context within which Coke wrote his com-
mentary bears out the point. King James I, as absolute
monarch, had asserted the authority to appoint or remove
judges at his pleasure and to influence their decisions at will.
See generally William S. Holdsworth, 5 A History of English
Law 423-56 (1924) (on the conflict between the king and
Coke concerning crown control of the courts). Coke asserted
that the common law took precedence over the authority of
the king.2 In that context, he wrote in the Second Institutes
that
2
  As Holdsworth explained, the dispute between Coke and King James I was
part of a larger one over the nature of sovereign power in post-Tudor England.
The courts “naturally magnified the royal prerogative on which they leaned and to
which they owed their authority. They therefore gravitated to the royalist view” of
the state. Holdsworth, 5 A History of English Law at 423-24. On the other hand,
the medieval common-law view was that “the law was supreme, and the [royal]
prerogative was therefore limited by it. The common lawyers therefore gravitated
to the parliamentary view that the prerogative was subject to definite legal limi-
tations.” Id. Coke was of the latter, parliamentary, view. Id. In Coke’s view, “the
common law was the supreme law in the state, and the judges, unfettered and
uncontrolled save by the law itself, were the sole exponents of this supreme
law.” Id. at 428. In James I’s view, “the judges were, like other civil servants, the
officers of the crown. The crown could therefore supersede them if necessary, and
decide any matter for itself.” Id.; see also Catherine Drinker Bowen, The Lion
and the Throne: The Life and Times of Sir Edward Coke 294 (1956) (The king’s
position—articulated by Lord Chancellor Ellesmere and Archbishop Bancroft,
respectively—was “rex est lex loquens,” that is, “the King is the law speaking.”
Judges were “lions, but yet lions under the throne, being circumspect that they
do not check or oppose any points of sovereignty.”). James I asserted just that
authority when, for example, he attempted to interfere with ongoing proceedings
in the common-law courts. Holdsworth, 5 A History of English Law at 438-40. Coke
was ultimately dismissed from the bench over the controversy. Meanwhile, James I
and his successor, Charles I, continued to remove judges who refused to do the
bidding of the crown. See generally J. H. Baker, An Introduction to English Legal
History 167 (4th ed 2002).
182 Klutschkowski v. PeaceHealth

“every subject of this realme, for injury done to him in bonis,
terris vel persona, by any other subject, be he ecclesiastical,
or temporall, free, or bond, man, or woman, old, or young,
or be he outlawed, excommunicated, or any other without
exception, may take his remedy by the course of the law,
and have justice, and right for the injury done to him,
freely without sale, fully without any deniall, and speedily
without delay.”
Edward Coke, The Second Part of the Institutes of the Laws
of England 55 (1797). The quote responds to the abuses of
the king, including the sale of justice, corrupt appointments,
and interference with judicial decisions. See generally
Jonathan M. Hoffman, By the Course of the Law: The Origins
of the Open Courts Clause of State Constitutions, 74 Or L
rev 1279, 1288 (1995) (“Royal interference with the common-
law courts incited Sir Edward Coke’s fight with the Crown
and inspired his reinterpretation of Magna Carta in his
Second Institute.”). It was about who was entitled to justice
from the courts—everyone, regardless of class or station—
and how remedies are to be administered under law—“freely
without sale, fully without any deniall, and speedily without
delay.” Nothing in the historical context of Coke’s Second
Institutes suggests that his point was that the courts were
the guardians of a substantive right to remedy against intru-
sions by Parliament. To the contrary, corrupt courts were
the problem for Coke. Smothers, in suggesting that Coke
was about protecting against legislative interference with
common-law remedies, turns Coke on his head, transforming
his discussion about royal corruption of courts into a declar-
ation of rights as against parliamentary interference.
The court also runs into trouble in its appeal to
Blackstone’s Commentaries. According to the court in Smothers,
“Blackstone explained that the common law viewed
Englishmen as having both absolute and relative rights.
*  * Absolute rights are founded on immutable laws of
* 
nature and reason, and usually are called liberties.
“* * * * *
“Blackstone echoed Coke in stating that it would be
‘in vain’ for the law to recognize rights, if it were not for
the remedial part of the law that provides the methods for
Cite as 354 Or 150 (2013) 183

restoring those rights when they wrongfully are withheld
or invaded.”
332 Or at 98-99 (citations omitted).
Once again, the court appears to have extracted
quotations from their context and summarized them to
stand for something that would have been foreign to their
source. Certainly, Blackstone spoke of absolute rights. The
entire first chapter of Book I of his Commentaries concerns
“the absolute rights of individuals.” William Blackstone, 1
Commentaries *117. But Blackstone viewed absolute rights
as such only in a state of nature. Id. at *119 (“By the abso-
lute rights of individuals we mean those which are so in
their primary and strictest sense; such as would belong
to their persons merely in a state of nature.”). He did not
regard them as absolute in the sense of being immune
from change or limitation by the legislature. See Albert
W. Alschuler, Rediscovering Blackstone, 145 U Pa L rev 1,
28 (1996) (Blackstone did not “view rights within political
communities as ‘absolute’ in the sense that they were
unqualified or unrestricted.”); Bradley J. Nicholson, A
Sense of the Oregon Constitution 209 (2011) (http://www.
asenseoftheoregonconstitution.com) (“[D]espite Blackstone’s
characterization of particular rights as ‘absolute,’ they
always were subject to legislative alteration.”).
To the contrary, Blackstone explicitly stated that
even so-called “absolute rights” were subject to regulation by
Parliament in the public interest. See, e.g., Robert P. Burns,
Blackstone’s Theory of the “Absolute” Rights of Property, 54
U Cinn L rev 67, 73 (1985) (In Blackstone’s view, “absolute
rights may be curtailed by necessary sacrifices, imposed by
positive law, for the blessings of civilized society.”); Jeffrey
D. Jackson, Blackstone’s Ninth Amendment: A Historical
Common Law Baseline for the Interpretation of Unenumerated
Rights, 62 Okla L rev 167, 208 (2010) (Absolute rights, to
Blackstone, “are not ‘absolute’ in all applications. Rather,
they are bound by ‘the laws of the land,’ that is, by the
valid laws enacted to protect and regulate society.”). In
Blackstone’s view, we relinquish some of our absolute
rights when we become members of a political community.
Blackstone, 1 Commentaries at *121 (“But every man, when
184 Klutschkowski v. PeaceHealth

he enters into society, gives up a part of his natural liberty.”).
As a result, otherwise absolute rights give way to laws that
are “necessary and expedient for the general advantage of
the publick.” Id. Thus, Blackstone cautions that, although
the rights are denominated “absolute,” they are subject “at
times to fluctuate and change: their establishment (excellent
as it is) being still human.” Id. at *123. To Blackstone, the
common law was not frozen; rather, Parliament possessed
authority to enlarge “the common law where it was too
narrow and circumscribed” and “restrain[  it where it was
]
too lax and luxuriant.” Id. at *86-87.
To say then, as Smothers does, that Blackstone
asserted a common-law right to a remedy superior to legis-
lative authority is quite at odds with what Blackstone
actually said. See Thomas R. Phillips, The Constitutional
Right to a Remedy, 78 NYUL rev 1309, 1323 (2003)
(“Blackstone clearly saw the remedies guarantee only as
a check on royal and other ‘private’ abuses of power, not
parliamentary excess.”); Nicholson, A Sense of the Oregon
Constitution at 208 (“[C]onsistent with the scope of the
18th-century doctrine of parliamentary supremacy, *  * * 
Blackstone apparently believed that parliament was more
trustworthy than the judiciary.”).
In a related vein, the court runs into further prob-
lems in invoking the hoary ubi jus maxim.3 According to
the Smothers court, “the purpose of the remedy clause is
to make the common-law maxim that there is no wrong
without a remedy a ‘fixed and permanent rule in this state.’ ”
332 Or at 115. As authority for that proposition, the court
cited its own decision in Platt v. Newberg et al., 104 Or 148,
153, 205 P 296 (1922), which, in turn, cited the Corpus Juris
Secundum, which simply stated that state remedy clauses
trace to Magna Carta. In fact, I am aware of no support
3
  Reference to the ubi jus maxim dates back at least to the early eighteenth
century. The English decision in Ashby v. White, 92 Eng Rep 126 (1703), is often
cited as the leading opinion. Blackstone certainly discussed it. Blackstone, 1
Commentaries at *55-56. It was also famously invoked in Marbury v. Madison, 5 US
137, 163 (1803) (“[W]here there is a legal right, there is also a legal remedy by suit
or action at law whenever that right is invaded.”). There has been some suggestion
that Ashby v. White has been misunderstood, as a result of an eighteenth century
publication mishap, and that the decision actually rejected the principle. See Ted
Sampsell-Jones, The Myth of Ashby v. White, 8 U St Thomas LJ 40, 40 (2010).
Cite as 354 Or 150 (2013) 185

for the notion that state remedy clauses were intended to
effectuate the ancient ubi jus maxim.
It appears that the maxim had an entirely different
purpose. It was cited by early common-law courts as author-
ity for courts to create remedies where statutes proved
inadequate. See generally Jonathan M. Hoffman, Questions
Before Answers: The Ongoing Search to Understand the
Origins of the Open Courts Clause, 32 Rutgers LJ 1005, 1010
(2001) (“[W]hatever its source, the Maxim was historically
applied to effectuate legislative policy, not to thwart it.”
(Emphasis in original.)). Thus, if statutes did not provide
a remedy for a given wrong, courts regarded themselves as
empowered to supply the needed remedy. That, at least, is
how mid-nineteenth-century cases viewed the maxim. See,
e.g., Stearns v. Atlantic & St L R Co, 46 Me 95, 102 (1858) (“But
the absence of all statutory remedy compels the plaintiff to
rely upon common law authority for bringing an ‘action upon
the case.’ ”). It was cited as authority for courts to add to the
legislature’s exercise of its lawmaking authority. I can find
no authority for the proposition that the maxim operated
to prevent legislatures from exercising their authority to
modify or eliminate common-law remedies, which is another
matter entirely.
The Smothers court encounters additional trouble
in relying on the framers’ “mistrust of legislative power” as a
basis for its reading of the remedy clause of Article I, section 10.
To be sure, mid-nineteenth-century framers of state consti-
tutions mistrusted legislative power. See generally Kermit L.
Hall, The Magic Mirror: Law in American History 89, 103-05
(1989) (“The populist and antigovernmental stirrings of
the late 1840s and 1850s climaxed in an outburst of consti-
tutional reform that diminished legislative power.”). But
that mistrust had specific focus in response to specific past
abuses of legislative power—in particular, corruption in the
legislative process and lack of deliberation on the passage of
laws, see generally Robert F. Williams, State Constitutional
Limits on Legislative Procedure, reprinted in 48 U Pitt L rev
797 (1987); adoption of laws that transferred large swaths of
land by fiat, see generally James Willard Hurst, The Growth
of American Law: The Law Makers 241-42 (1950); Mark A.
186 Klutschkowski v. PeaceHealth

Graber, Naked Land Transfers and American Constitutional
Development, 53 Vand L rev 71 (2000); and other laws that
granted special privileges and immunities to favored indi-
viduals or businesses, see generally G. Alan Tarr and Robert
F. Williams eds., State Constitutions for the Twenty-first
Century: The Agenda of State Constitutional Reform 21
(2006) (“A number of states include in their constitutions
a curb on granting ‘special’ or ‘exclusive’ privileges, after a
series of abuses by the relatively unfettered state legisla-
tures responding to powerful economic interests.”); Kurt T.
Lash, The Origins of the Privileges or Immunities Clause,
Part I: “Privileges and Immunities” as an Antebellum Term
of Art, 98 Geo LJ 1241, 1253 (2010); David Schuman, The
Right to “Equal Privileges and Immunities”: A State’s Version
of “Equal Protection,” 13 Vt L rev 221, 223 (1988). Those
abuses led to the adoption of enactment requirements that
promoted openness and deliberation, as well as prohibitions
on local and special laws and other forms of legislative
favoritism.4
I have searched the historical record in vain for any
suggestion that the abuses of mid-nineteenth-century leg-
islatures also included the enactment of laws that encroached
on common-law tort remedies. Smothers certainly identified
none. That such is the case, again, is understandable when
the historical context is more fully taken into account. The
mid-nineteenth century, after all, was no friend to those
seeking recovery for injury. The law of negligence was in its
infancy. Lawrence Friedman, A History of American Law
222 (3d ed 2005) (in the nineteenth century, “[n]egligence
was the merest dot on the law”); Morton J. Horowitz, The
Transformation of American Law 1870-1960 85 (1977) (“One
is surprised to learn how really late it was in the nineteenth
4
 As Professor G. Alan Tarr explains in his leading treatise on state consti-
tutions, beginning in the 1830s, state constitution makers imposed restrictions on
legislatures, principally to address problems of corruption. G. Alan Tarr, Under-
standing State Constitutions 118 (1998). The constitutional limitations tended to
focus on process, requiring supermajorities, multiple readings, title requirements,
single-subject limitations, and the like. Id. at 118-19. Later, in the period from
1840-70, the focus shifted to legislative favoritism, resulting in requirements of
equal taxation and bans on special corporation acts, among other things. Id. “Most
restrictions,” Tarr explains, “were designed to combat special privilege and the
threat of corruption by forbidding legislators from enacting special or local laws in
specific areas of public policy.” Id. at 120.
Cite as 354 Or 150 (2013) 187

century before the action for negligence became a significant
factor in American law.”).5 The law was dominated by doc-
trines that favored railroads and industry. Under the
prevailing “fellow servant rule” and its cousin, assumption
of risk, employees could almost never sue their employers
for workplace injuries.6 Contributory negligence precluded
recovery if a plaintiff were at fault in the slightest way. See
Lawson v. Hoke, 339 Or 253, 262, 119 P3d 210 (2005) (noting
5
  The first treatise on the subject of torts did not appear until 1859. Francis
Hilliard, The Law of Torts or Private Wrongs (1859) (the first printed text on torts).
As late as the 1870s, Oliver Wendell Holmes remarked that torts “is not a proper
subject for a law book,” as it simply amounted to a collection of unrelated writs.
O. W. Holmes, Book Notice, 5 Am L rev 340, 341 (1871). As Professor G. Edward
White noted in his leading treatise on the history of the development of tort law
in this country, “[t]he emergence of Torts as an independent branch of law came
strikingly late in American legal history.” G. Edward White, Tort Law in America:
An Intellectual History 3 (2003). Torts, he explained “was not considered a discrete
branch of law until the late nineteenth century.” Id.
6
  Courts held that risks resulting from a dangerous place of employment were
incident to employment and addressed in the worker’s rate of pay. An employee
could sue an employer only for the employer’s personal misconduct, which, given
the realities of nineteenth-century industrial organization, made that possibility
essentially meaningless. See generally Lawrence M. Friedman and Jack Ladinsky,
Social Change and the Law of Industrial Accidents, 67 Colum L rev 50, 53 (1967)
(“An employee retained the right to sue the employer for injuries, provided they
were caused by the employer’s personal misconduct. But the factory system and
corporate ownership of industry made this right virtually meaningless.”).
The law was famously described by Chief Justice Shaw in Farwell v. Boston
& W. R. Corp., 45 Mass 49, 59-60 (Mass 1842), in which he explained that, “[t]he
general rule, resulting from considerations as well of justice as of policy, is, that he
who engages in the employment of another for the performance of specified duties
and services, for compensation, takes upon himself the natural and ordinary risks
and perils incident to the performance of such services, and in legal presumption,
the compensation is adjusted accordingly.” See also Comment, The Creation of a
Common Law Rule: The Fellow Servant Rule, 1837-1860, 132 U Pa L rev 579, 590-95
(1984) (describing Farwell and its rapid adoption by most courts).
Some courts adopted exceptions to the rules barring negligence claims against
employers. For example, courts created an exception for employers who supplied
faulty tools, see, e.g., Flike v. Boston & A.R. Co., 16 Am Negl Cas 765 (NY 1873) (“The
master is liable if his own negligence or want of care produces the injury, and this
may be manifested by * * * furnishing improper or unsafe machinery, implements,
facilities or materials for the use of the servant.”), and another, known as the
“vice-principal exception,” that applied to certain supervisory employees whose
responsibilities were such that the courts regarded them as, in effect, the employee,
see, e.g., Berea Stone Co. v. Kraft, 31 Ohio St 287, 291-92 (1877) (The fellow servant
rule, “has no application where the servant by whose negligent conduct or act the
injury is inflicted, sustains the relation of superior in authority to the one receiving
the injury.”). But such exceptions did not arise until later, in most cases, years after
the adoption of the Oregon Constitution. See generally Peter Karsten, Heart versus
Head: Judge-Made Law in Nineteenth-Century America 122-124 (1997) (describing
adoption of various exceptions to fellow-servant rule from 1860s to 1880s).
188 Klutschkowski v. PeaceHealth

“the indisputable proposition that, in the early years of this
state’s history, a plaintiff’s contributory negligence was an
absolute bar to recovery for the negligent acts of another”).
The “spirit of the age,” as Friedman put it, “was a spirit of
limits on recovery.” A History of American Law at 352. And
those limits on recovery “[a]ll had either been invented or
refined by the judges themselves.” Id. at 356.7
7
  For that reason, it is especially difficult to understand the court’s application
of its new interpretation of the remedy guarantee to the question whether the
common law in 1857 recognized negligence claims by employees against employers.
The court in Smothers declared that, “in 1857, the common law of Oregon would
have recognized that a worker had a cause of action for negligence against his
employer for failing to provide a safe workplace.” 332 Or at 131. Yet the court found
not a single antebellum case to support that proposition.
That is hardly surprising, given the state of the law at the time. As I mentioned,
it was all but impossible to recover against an employer for injuries negligently
inflicted in the workplace. How, then, could Smothers conclude that “in 1857, the
common law of Oregon would have recognized that a worker had a cause of action
for negligence against his employer for failing to provide a safe workplace”? 332
Or at 131. In brief, the court cited several cases from the 1870s and 1880s that
recognized exceptions to the rule of nonliability, without acknowledging the rule
itself.
For example, the court relied heavily on an 1880 United States Supreme Court
decision, Hough v. Texas and Pacific R.R. Co, 100 US 213, 25 L Ed 612 (1879),
which it said recognized a “firmly established” rule that employers were obligated
by law to provide a safe workplace. 332 Or at 129-30. A careful reading of Hough,
however, reveals a different picture. In that case, the United States Supreme
Court expressly recognized “the general rule exempting the common master from
liability to one servant for injuries caused by the negligence of a fellow-servant
in the same employment.” 100 US at 215. The Court quoted extensively from
Chief Justice Shaw’s opinion in Farwell and commented that, “[a]s to the general
rule, very little conflict of opinion is to be found in the adjudged cases.” Id. at 216.
Indeed, the Court said, “the general doctrine, as stated by Chief Justice Shaw, is
sustained by elementary writers of high authority, and by numerous adjudications
of the American and English courts.” Id. The Court then went on to note a recently
recognized exception to the general rule, that employers were obliged to “provid[e]
the servant with machinery or other instrumentalities adequately safe” for use in
the workplace. Id. at 217. This is precisely one of the exceptions that I mentioned
above, exceptions that were not adopted until the 1860s and 1870s.
In similar fashion, the court in Smothers quoted Anderson v. Bennett, 16 Or 515,
19 P 765 (1888), as holding that “an employer, and the employer’s representatives,
have a duty ‘to use reasonable care and diligence and [to] make reasonable provision
for the servant’s safety.’ ” 332 Or at 131 (quoting Anderson, 16 Or at 532). The court
conceded that Anderson was decided more than 30 years after the adoption of
the constitution, but it regarded the decision as controlling nonetheless, because
“nothing in the court’s opinion in that case suggested that the holding was novel or
that the decision marked a departure from any previous decisions or jurisprudence
on the subject.” 332 Or at 131. That appears to be incorrect.
The court in Anderson actually began its analysis by acknowledging the
general rule and rationale from Shaw’s Farwell decision: “The general doctrine that
a master is not liable for the injuries caused by the negligence of a fellow-servant
Cite as 354 Or 150 (2013) 189

In that context, I have to wonder where the idea
originated that the framers wanted judges to act as restraints
on legislative abrogation of common-law remedies. The robust
common-law remedies with which we are so familiar today
barely existed at the time, and it was the judges who were
adopting constraints on them.
The problems with Smothers that I have described
do not appear to be mere disagreements about subtle issues
of historical interpretation that are of idle academic interest.
Recall that the court in Smothers acknowledged an absence
of direct evidence of what the Oregon framers intended the
remedy clause to mean. The linchpin of its decision was its
construction of a settled understanding of what remedy
clauses meant to mid-nineteenth-century framers. The court
then read the silence of the record as to the particular inten-
tions of the Oregon framers as, in effect, acquiescence in
that settled understanding. 332 Or at 114 (“[W]e find no
indication that the drafters sought to depart from the his-
torical purpose of remedy clauses.”).
The problem is that the court did not make its case
for a settled understanding of state remedy clauses. The
matter is, at best, debatable. Indeed, what scholarship on
engaged in the same common employment is now regarded as part of the common
law of this land.” 16 Or at 520. But, after acknowledging the general rule, the court
explained that more recent decisions have retreated from that harsh rule in the
interests of justice:
“But in the progress of society since the decision in Farwell v. Railroad Co.
such has been the increase in the number and magnitude of the business
operations of the country, the great army of servants required to be employed
to perform their work, and the necessity of placing over them, and in charge
of these vast operations, other servants to direct and control their labor, that
there has been wrought in the judicial mind the conviction that the general
application of that rule in such cases has often worked manifest injustice and
hardship. So that the later current of judicial decision * * * indicates a marked
departure from that rule, and a disposition to so limit and restrict it as shall
make the master answerable for his just share of responsibility to his servant
for injuries sustained in his employment.”
16 Or at 522 (emphasis added). In that context, the court then recognized the
development of the vice-principal exception to the fellow-servant rule and the
obligation of the employer to furnish a safe place of employment. Id. at 528.
Thus, in both cases, it appears that Smothers failed to acknowledge what the
authorities it cited actually said about the general rule of nonliability of employers
and instead quoted from what those authorities identified as exceptions to that
general rule—exceptions that were not widely recognized until after the adoption
of the Oregon Constitution.
190 Klutschkowski v. PeaceHealth

the subject exists suggests an absence of any consensus
about what state remedy clauses were intended to mean.
See, e.g., Hoffman, 74 Or L rev at 1281 (“Research published
to date reveals little more than that the provision comes
from Magna Carta Chapter 40, as viewed through the lens
of Sir Edward Coke’s Second Institute.”).8 And, bearing out
that very point, courts in states whose constitutions include
remedy guarantees are divided about what the guarantees
actually mean. Jennifer Friesen, State Constitutional Law:
Litigating Individual Rights, Claims and Defenses § 6.02[3]
at 6-9 (4th ed 2006) (“[S]tate court decisions divide sharply
on the central issue of whether (and how) these clauses do
limit legislative attempts to alter remedies available under
the common law.”).
Aside from the fact that Smothers appears to rest
on a shaky historical foundation, the decision does not
appear to be working very well on its own terms, as our
recent, sharply divided cases make clear. See, e.g., Howell
v. Boyle, 353 Or 359, 298 P3d 1 (2013). This court, in fact,

8
 There is little in the way of scholarship about the historical origins of
remedy clauses. But, even within that small universe of scholarship, there is
much disagreement. A number of authors take the position that the clauses were
intended only to secure an independent, accessible judiciary. See, e.g., Nicholson,
A Sense of the Oregon Constitution at 194 (Article I, section 10, was intended “to
provide every person with access to the courts to resolve private disputes, but does
not guarantee a recovery or require that any particular rules of law shall apply.”);
Hoffman, 74 Or at 1318 (“Modern cases and commentaries interpreting this clause
* * * to forbid legislatures from modifying or eliminating existing remedies through
duly enacted legislation[  are simply not consistent with the original purpose of
]
the clause.”); Daniel W. Halston, The Meaning of the Massachusetts “Open Courts”
Clause and Its Relevance to the Current Court Crisis, 88 n 3 Mass L rev 122, 130
(2004) (“there is ample evidence that the clause, once placed in historical context,
was actually intended to create and protect an independent judiciary”); Phillips,
The Constitutional Right to a Remedy, 78 NYUL rev at 1309 (same). Others
suggest—in my view, without much in the way of explanation—that the clauses
were intended to limit legislative authority. See, e.g., Comment, The Kansas
Remedy by Due Course of Law Provision: Defining a Right to a Remedy, 47 U Kan
L rev 655, 659 (1999) (the use of remedy clauses “to curtail legislative power
remains true to the historical spirit of the provision as a means of preserving the
common law”); William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A
Historical Reconsideration of Article I, section 17 of the Tennessee Constitution, 27
U Mem L rev 333, 450 (state remedy clause limits legislative authority to abolish
common-law remedies). Still others take a sort of middle position. Schuman, 65
Temple L rev at 1224-25. And still others suggest that there may be a constitutional
right to a remedy, but only under a state or federal due process clause. See, e.g.,
Tracy A. Thomas, Restriction of Tort Remedies and the Constraints of Due Process:
The Right to an Adequate Remedy, 39 Akron L rev 975 (2006).
Cite as 354 Or 150 (2013) 191

appears to have trouble even identifying—and agreeing
about—what Smothers held. In Lawson, for example, the
court concluded that, because the plaintiff’s negligence
claim was subject to various defenses at common law, it was
not the sort of “absolute common-law right” that the remedy
clause protects, 339 Or at 264-65. The court used the term
“absolute” quite differently from the way Smothers used it
and, in the process, significantly muddied the waters in this
area of the law.
The difficulty is that Smothers explicitly holds that
the scope of the remedy clause is limited to protecting
common-law rights that vested in 1857. That is problematic
in at least several ways.
First, if Smothers constitutionally protects claims
that existed in 1857, it would seem to follow that its protection
extends to some that can only be regarded as quaint artifacts
of a time long gone by. For example, if Smothers means what
it says, I do not understand how the legislature had the
constitutional authority to eliminate a husband’s common-
law liability for the torts of his wife or such claims as the tort
of alienation of affection. It should not be forgotten that, at
the time of the adoption of the Oregon Constitution, women
had limited legal rights, and some persons of color had none
at all.
Second, if the remedy clause protects only those
claims that “vested” in 1857, that turns out to be not much of
a guarantee, given the state of the common law at that time.
For example, as this court noted in Howell, at the time of the
adoption of the Oregon Constitution, a plaintiff could not state
a claim for negligence without affirmatively establishing a
complete absence of contributory negligence. 353 Or at 382-
85. The doctrine was not treated as a defense in this state
until the mid-1880s. See Grant v. Baker, 12 Or 329, 332-33,
7 P 318 (1885) (first decision to treat contributory negligence
as an affirmative defense). It would seem to follow that the
remedy clause affords no relief to any twenty-first century
plaintiff who was at fault in the slightest way.
Third, there is the unavoidable problem of determin-
ing the proper level of generality with which to describe and
192 Klutschkowski v. PeaceHealth

analyze claims that may have existed at common law in
1857. For example, in Lawson, a motorist who was injured
in a collision with another motorist argued that a statutory
limitation on noneconomic damages when the injured party
did not have automobile liability insurance violated her right
to a remedy under Article I, section 10, because the statute
abrogated claims for negligence, which clearly existed in
1857. The defendant argued that the remedy clause did not
apply under Smothers, because claims for injury arising
out of automobile accidents were not recognized in the mid-
nineteenth century, automobiles not having been invented at
the time. The plaintiff rejoined that, although automobiles
had not yet been invented, Conestoga wagons had been, and
the law would have recognized injuries arising out of such
transportation-related accidents. This court ultimately held
that neither party was correct and that the key determinant
to the question whether the framers would have recognized
a claim for the plaintiff’s injuries in 1857 was the fact that
she had failed to comply with the law that required her to
obtain liability insurance. 339 Or at 260. It strikes me that
there is no way to determine whether the remedy clause
actually applies until this court identifies the proper level of
generality with which to describe the nature of the claims
that the common law in 1857 would or would not have rec-
ognized, and nothing in Smothers or any other case of which
I am aware provides a principle of law that enables the bench
and bar to predict what that proper level of generality is.
In that regard, it is worth noting that it is plaintiff
in this case who suggests that we should depart from the
rigid historical focus of Smothers and broaden the guarantee
beyond those rights that existed in 1857. That simply will not
work, however, at least not without completely rethinking
the interpretation of the remedy clause. Smothers cannot
just be tweaked as plaintiff suggests. Its very rationale
is that certain rights vested at a point in time. 332 Or at
116 (under the remedy clause, “[v]ested rights are placed
under constitutional protection, and cannot be destroyed by
legislation.” (quoting Templeton v. Linn County, 22 Or 313,
318, 29 P 795 (1892)). It is explicitly historical.9
9
 That is not based on a stray or incidental quote from the court’s opinion.
In Smothers the court stated nearly a dozen times that the drafters “sought to
Cite as 354 Or 150 (2013) 193

My own view is that it is unlikely that the framers
intended the remedy clause to serve as a limitation on
legislative authority, certainly not one that essentially freezes
the guarantee to preserve mid-nineteenth-century tort law.
See generally Brewer v. Dept. of Fish and Wildlife, 167 Or
App 173, 191-98, 2 P3d 418 (2000) (Landau, J., concurring).
I am inclined to agree with what appears to be the majority
of other state courts that have addressed the issue, which
conclude that state remedy clauses are addressed to the
courts, not the legislature, and that—consistently with mid-
nineteenth-century antipathy to favoritism—its target is the
accessibility of the courts by all, without discrimination.10

give constitutional protection to absolute rights respecting person, property, and
reputation as those rights were understood in 1857,” 332 Or at 115 (emphasis
added), or similar phrasing. See also, e.g., id. at 116 (“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.’  (quoting Stewart v.
”
Houk et al., 127 Or 589, 591, 271 P 998 (1928)); id. at 118 (“As we have explained,
the history of the remedy clause indicates that its purpose is to protect absolute
common-law rights respecting person, property, and reputation as those rights
existed when the Oregon Constitution was drafted in 1857.”); id. at 123 (“Article I,
section 10, protects rights respecting person, property, and reputation that, in
1857, the common law regarded as ‘absolute.’ ”); id. at 124 (remedy clause preserves
claims for “injury,” defined as “a wrong or harm for which a cause of action existed
when the drafters wrote the Oregon Constitution in 1857”). It was, in fact, explicitly
the basis for this court’s holding in prior cases that certain modern claims are not
subject to the remedy guarantee of Article I, section 10. See Hughes, 344 Or at
151-52 (remedy clause does not apply to claims for wrongful death, because such
claims were not recognized at the time of the adoption of the Oregon Constitution).
10
  See, e.g., O’Quinn v. Walt Disney Productions., Inc., 177 Colo 190, 195, 493
P2d 344 (Colo 1972) (remedy clause “simply provides that if a right does accrue
under the law, the courts will be available to effectuate such right”); Hawley v.
Green, 117 Idaho 498, 500-01, 788 P2d 1321 (Idaho 1990) (remedy clause “merely
admonishes the Idaho courts to dispense justice and to secure citizens the rights
and remedies afforded by the legislature or by the common law”); Smith v. Indiana
Dept. of Correction, 883 NE 2d 802, 808 (Ind 2008) (“the Open Courts Clause
does not prevent the legislature from modifying or restricting common law rights
and remedies”); Crier v. Whitecloud, 496 So 2d 305, 309-10 (La 1986) (“From this
history [of the state open courts clause] we conclude that *  * the Constitutional
* 
Convention did not intend to limit the legislature’s ability to restrict causes of
action or to bar the legislature from creating various areas of statutory immunity
from suit. * * * The constitutional guarantee providing for open courts and insuring
a remedy for injuries does not warrant a remedy for every single injury.”); Meech
v. Hillhaven West, Inc., 238 Mont 21, 30, 776 P2d 488, 493 (Mont 1989) (“The
history of the guarantee indicates that framers of state constitutions inserted
remedy clauses to insure equal administration of justice. Clauses insuring equal
administration of justice are aimed at the judiciary, not the legislature.”); Lamb v.
Wedgewood South Corp., 308 NC 419, 444, 302 SE2d 868 (NC 1983) (“the remedy
constitutionally guaranteed must be one that is legally cognizable. The legisla-
ture has the power to define the circumstances under which a remedy is legally
194 Klutschkowski v. PeaceHealth

But I make no claim that that view reflects any-
thing close to settled law or history. Moreover, that view
presupposes that the framers’ intentions are controlling in
the first place—a position that, as I have said, I contest. At
this point, I am less invested in a particular interpretation
of the clause than I am in having the matter served up for
proper argument and reexamination.
I have similar reservations about Hughes, especially
with respect to its incorporation of Smothers-type analysis
into the interpretation and application of the right to a
jury trial guaranteed by Article I, section 17, of the Oregon
Constitution. At issue in Hughes was the constitutionality
of a statutory limit on noneconomic damages in a wrongful
death action. The plaintiff argued that the cap, among other
things, violated her right to a remedy under Article I, section
10, and her right to a jury trial under Article I, section 17.
As to the remedy clause claim, the court diligently applied
Smothers and concluded that the remedy clause did not apply
to wrongful death claims, because neither the common law
nor the Oregon legislature recognized such claims until at
least five years after the adoption of the state constitution.
344 Or at 146-52. Turning to the jury clause claim, the
court similarly concluded that the plaintiff could not prevail
“[b]ecause the common law does not, and did not in 1857,
recognize a right to unlimited damages in wrongful death
actions.” Id. at 156-57.
Article I, section 17, provides that, “[i]n all civil
cases the right of Trial by Jury shall remain inviolate.” By
its terms, it applies to “all civil cases,” not just the limited
number of civil cases that would have triggered a right to
a jury trial in 1857. And I am aware of no evidence in the
cognizable and those under which it is not.”); Andrews v. O’Hearn, 387 NW2d 716,
723 (ND 1986) (“[o]ur research shows that [the open courts clause of the state
constitution] has been repeatedly construed as a guarantee of access to our State
system of justice”); Singer v. Sheppard, 464 Pa 387, 400, 346 A2d 897 (1975)
(“nothing in [the state constitution] prevents the legislature from extinguishing
a cause of action”); Nash v. Baker, 522 P2d 1335, 1338 (Okl App 1974) (state open
courts clause “does not promise a remedy to every complainant[;] * * * [i]t does not
prevent the Legislature from creating new legal rights * *  or from increasing or
*
reducing or changing the scope of such a right or the remedy for its violation”);
Quesnel v. Town of Middlebury, 167 Vt 252, 258, 706 A2d 436, 439 (1997) (state
open courts clause “does not create substantive rights[,] *  * it merely provides
* 
access to the courts”).
Cite as 354 Or 150 (2013) 195

historical record that the framers of the provision intended
or contemplated that the constitutional guarantee would be
so limited.
In fact, our more recent case law rejects just such a
reading of Article I, section 17. In M. K. F. v. Miramontes, 352
Or 401, 287 P3d 1045 (2012), we expressly rejected the notion
that the right to a jury trial is limited to claims that existed
at common law at the time of the framing of the constitution.
To the contrary, we held that the guarantee applies to all
“claims or requests that are properly categorized as ‘civil’ or
‘at law.’ ” Id. at 425. Only if a claim, standing alone, is “equi-
table in nature and would have been tried to a court without
a jury at common law,” does the guarantee not apply. Id.
Obviously, there is some tension between what this
court said and did in Hughes and what we said and did in
Foster.
It strikes me that there are two possible ways to
resolve that tension. First, we could conclude that Foster—
which did not expressly address the matter—implicitly
overruled Hughes. Second, we could conclude that Foster did
not need to overrule Hughes, because Hughes and its
Smothers-like analysis apply to only a particular aspect of
the right to a jury trial, namely, a right to the benefit of the
jury’s decision itself without any statutory limitations, and
does not apply to the broader question whether there is a
right to have the jury make the decision in the first place.
In my own view, only the former possibility is ten-
able. I do not understand how the right to a jury trial can
be parsed out into subsidiary rights, one of which requires
Smothers-like historical analysis and the other that does
not. Either there is a right to a jury trial, or there is not.
Plain and simple.
It could be inferred that the court implicitly adopts
the second of the two possibilities in this case, given that it
has engaged in the historical analysis that Smothers and
Hughes require in deciding the matter under Article I, section
17. I think the inference would be erroneous, however. As
the court notes, neither party asks us to overrule Hughes.
Moreover, because the court concludes that plaintiff’s claims
196 Klutschkowski v. PeaceHealth

would have been recognized at common law, it simply does
not need to address whether such analysis is required. Still,
the issue is an important one, and deserves to be addressed
in an appropriate future case.
I do not argue that we should address all of these
issues in this case. Although I would not go so far as to
say that we are incapable of reconsidering earlier decisions
without a request from one or more parties, I nevertheless
recognize that questions such as the ones that I have posed
are difficult and complex and that the court, in attempting
to address them, would benefit from the sort of research and
argument that the adversarial process provides. Careful
and vigorous advocacy may reveal that I am mistaken in my
critique of Smothers and Hughes. Or not. Either way, before
we apply those decisions in future cases, we should invite
such advocacy to address the issues that I have raised.