concurring.
Plaintiff was injured by the medical negligence of employees of Oregon Health and Science University (OHSU). *611Plaintiff suffered damages (which OHSU, for present purposes, does not dispute) of at least $11 million, primarily for the cost of his past and future medical care. Oregon’s current statutes limit plaintiffs recovery to $100,000 for economic damages (medical costs, lost wages, and similar losses) and another $100,000 for noneconomic damages, such as pain and suffering. I agree with the majority’s analysis and with its conclusion that the statutes that lead to that result deprive plaintiff of a remedy that he had at common law without providing an adequate substitute remedy, in violation of the “Remedy Clause” of Article I, section 10, of the Oregon Constitution.
I write separately to make two points. First, the limit on the remedy available to plaintiff here should have been increased long ago by the legislature — and the legislature should take this opportunity to reconsider the appropriate tort claims act limits for medical malpractice claims against OHSU. Second, the majority correctly states that the Remedy Clause does not prevent the legislature from modifying the form or amount of recovery — or even from eliminating — common-law claims, as long as it provides an adequate substitute remedy. I would add that, under this court’s cases, a legislatively imposed limit on the damages that an injured patient may recover against OHSU and its employees would not violate the Remedy Clause as long as that limit does not deprive the patient of a “substantial” remedy. Those cases also demonstrate that the majority’s decision does not threaten existing statutes in which the legislature has altered or eliminated common-law causes of action, such as the workers’ compensation system.
I begin with a point that should be apparent to all the parties and amici in this case: The arbitrarily low cap on damages for medical malpractice claims against OHSU and its employees is a problem that has long called for a legislative solution. The present tort claims act imposes a cap of $100,000 for economic damages and another $100,000 for noneconomic damages for torts committed by public agencies and their employees without regard to the nature of the tort. ORS 30.270. Those limits may well be appropriate for most torts committed by public employees. Car accidents in which *612a public employee is at fault; the failure to clear ice from a public sidewalk leading to an injury — the damages from those kinds of injuries may occasionally exceed the cap, but ordinarily they will not. It is for that reason that drivers and homeowners often carry insurance of $100,000 per person and $300,000 per accident. But, as this case so tragically illustrates, the nature of medical malpractice claims is such that damages in the form of future medical expenses and lost wages often can be hundreds of thousands or millions of dollars. For that reason, doctors don’t have malpractice insurance of $100,000 or $300,000; rather, virtually every doctor in Oregon has medical malpractice insurance coverage of at least $1 million, with many doctors maintaining coverage of $3 million or $5 million per occurrence.1
The insurance obtained by individuals for claims arising from their driving and homeownership — and by doctors for malpractice claims — does not necessarily determine the limits of liability that the legislature should set for purposes of the Oregon Tort Claims Act, let alone the level that is required by the Remedy Clause. At the very least, however, the decisions of private individuals and institutions regarding their insurance coverage provide some indication of the kinds of claims those private actors ordinarily face and, indirectly, of what kind of remedy for those claims likely would be “substantial” or “adequate” for purposes of the Remedy Clause. In any event, the fact that virtually every Oregon doctor carries malpractice insurance that far exceeds the caps applicable to OHSU and its employees suggests that those limits need to be changed. In my view, the legislature should, at least for medical malpractice claims, increase the existing claims limit substantially and immediately and, perhaps, retroactively.
My second point relates to the standards by which this court reviews legislative modifications of common-law causes of action to determine whether they are consistent *613with the Remedy Clause. This court’s Remedy Clause cases allow the legislature to adjust Oregon law to changing circumstances by creating, eliminating, or altering causes of action or providing defenses or immunities to the cause of action; however, if those changes eliminate a common-law remedy that existed in 1857, the legislature must provide an adequate substitute remedy. See Smothers v. Gresham Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001). The majority recognizes that flexibility: “[T]he legislature is authorized under Article I, section 10, to vary or modify the nature, the form, or the amount of recovery for a common-law remedy,” as long as an injured person has an adequate substitute remedy. 343 Or at 609; see also 343 Or at 606 (Remedy Clause “does not eliminate the power of the legislature to vary and modify both the form and the measure of recovery for an injury, as long as it does not leave the injured party with an ‘emasculated’ version of the remedy that was available at common law.”).
The difficulty, of course, in this as in other Remedy Clause cases, is determining whether a substituted remedy is constitutionally adequate. This court has not articulated a precise test, and it probably is not possible to do so. As the majority notes, we have used different words to try to identify what kind of remedy is required. Many cases simply have held that the legislature may not leave a plaintiff “without remedy,” Mattson v. Astoria, 39 Or 577, 579, 65 P 1066 (1901), or with only an “emasculated” remedy. West v. Jaloff, 113 Or 184, 195, 232 P 642 (1925). In Hale v. Port of Portland, 308 Or 508, 523, 783 P2d 506 (1989), the court reviewed the earlier Remedy Clause decisions and stated that the Remedy Clause “is not violated when the legislature alters (or even abolishes) a cause of action, so long as the injured party is not left entirely without a remedy. Under those cases, the remedy need not he precisely of the same type or extent, it is enough that the remedy is a substantial one.” (Emphasis added.) In Hale, this court upheld a cap on damages that the legislature had enacted as part of an expansion of the class of plaintiffs who could sue a public body: “A benefit has been conferred, but a counterbalancing burden has been imposed. This may work to the disadvantage of some, while it will work to the advantage of others.” Id.
*614Plaintiff argues that any statute that imposes a limit on the damages that a plaintiff could have recovered at common law violates the Remedy Clause. From plaintiffs perspective — which I respect, but disagree with — the Remedy Clause prevents the legislature from eliminating plaintiffs cause of action against the individual defendants in this case and substituting OHSU as the sole defendant, as long as there is any limit on OHSU’s liability. Plaintiff asserts that even if the legislature set a limit of $1 million or $10 million on OHSU’s liability, that limit would be unconstitutional as applied to any plaintiff whose damages exceeded whatever the limit happened to be.2 Plaintiff takes that position because, at common law, plaintiff had a cause of action against the individual defendants for all his damages, without any limit whatsoever.
No Oregon case supports plaintiffs position that any tort claims act limit would be unconstitutional when applied to a plaintiff whose damages exceeded that limit. Hale is almost directly on point. There, this court upheld a tort claims damage limit of $100,000 on a claim against the City of Portland, even though (1) the plaintiffs alleged economic damages exceeded $600,000, and (2) at common law, the plaintiff would have had a claim against the city for an unlimited amount (because the claim was against the city acting in a proprietary capacity). This court rejected the plaintiffs argument that the $100,000 limit on damages that could be recovered against the city violated the Remedy Clause because the plaintiffs damages exceeded that amount. As this court concluded in upholding the cap, although “a limit has been placed on the size of the award that may be recovered,” all persons “who had a remedy continue to have one.” Hale, 308 Or at 523. More relevant to this case, the court in Hale recognized that when the legislature modifies a common-law claim, that change may “work to the disadvantage of some, while it will work to the advantage of others.” Id.
*615Plaintiff asserts that Hale is distinguishable because that case, unlike this one, did not involve a claim against individual defendants that the legislature had eliminated. Although Justice Linde relied upon that fact in his concurring opinion, 308 Or at 527 (Linde, J., concurring), it played no role in the majority’s analysis. Rather, the majority in Hale viewed the statutory scheme there as adjusting the liability of public defendants by making the city liable for torts committed in its governmental capacity that it would not have been liable for at common law. Similarly, in this case, the statutory scheme adjusted the liability of public defendants by eliminating the common-law claim against the individual defendants and making OHSU liable for their torts— liability from which it would have been immune at common law.3 In both cases, those adjustments were accompanied by the imposition of a limit on the amount of damages that, without the statutory limit, could have been recovered at common law.
Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995), also rejected the argument that plaintiff makes here. In that wrongful death case, a jury had awarded the plaintiff non-economic damages of $1.5 million, but the trial court had reduced the award to $500,000 pursuant to former ORS 18.560(1) renumbered as ORS 31.710 (2003). The plaintiff in Greist made the same argument that plaintiff makes here: that the cap “wholly denies a remedy for legitimate losses that exceed $500,000.” Greist, 322 Or at 290 (quoting the plaintiffs brief; emphasis added). This court, however, concluded that plaintiffs recovery of $500,000 in noneconomic damages, in addition to $100,000 in economic damages, was a “substantial remedy,” even though it was a fraction of the amount that the jury had awarded.
The majority distinguishes Hale and Greist from this case on grounds that I find persuasive. However, nothing in the majority opinion undermines the holdings in those cases that the Remedy Clause does not prohibit the legislature from imposing caps on tort damages as long as those caps do *616not deprive a plaintiff of a “substantial remedy.” Hale and Greist both hold that the legislature may act with regard to classes of claims or plaintiffs and that a statutory limit on certain kinds of claims does not violate the Remedy Clause, even though it may limit the damages that can be recovered by a particular plaintiff for a particular claim. In my view, the problem with the statutory scheme at issue in this case is not the fact that OHSU’s liability is capped, but rather that a cap of $100,000 for economic damages and $100,000 for nonecon-omic damages is not a substantial remedy for medical malpractice claims.
To summarize, Article I, section 10, does not “freeze in place common-law causes of action that existed when the drafters wrote the Oregon Constitution in 1857.” Smothers, 332 Or at 124. Rather, the legislature may modify those remedies by changing the nature of the plaintiff’s claim, the available defenses, or the amount of damages that the plaintiff may recover, as long as the plaintiff retains a substantial remedy “for injury done him in his person, property, or reputation.” Here, the modification made by the legislature — the elimination of the claims against the individual defendants and the substitution of OHSU as the only defendant, with the caps on OHSU’s liability described above — did not leave plaintiff with a substantial remedy for his malpractice claim.
That understanding of the issue in this case also demonstrates that nothing in the majority’s opinion undermines other statutes in which the legislature has adjusted common-law rights and liabilities. The most obvious example is the workers’ compensation system. In Smothers, this court stated that the court’s earlier decisions “implicitly * * * recognized the legislature’s constitutional authority to substitute workers’ compensation for the common-law negligence cause of action for work-related injuries.” 332 Or at 125. The workers’ compensation scheme provides an injured worker with compensation for work-related injuries without the necessity of proving the employer’s negligence; however, the amounts that a particular injured worker may receive may well be less than he or she could recover in a successful negligence action against the employer. In a sense, an injured worker’s damages are capped at the level of benefits that the worker receives under the workers’ compensation program. *617However, because of the trade off of not having to prove the employer’s negligence (and other procedural advantages) and because injured workers’ benefits are related to the severity of the injury, the workers’ compensation scheme provides workers generally with a “substantial remedy” for Remedy Clause purposes.
In other statutes, the legislature has determined that important public policies will be advanced by encouraging certain activities and has modified common-law causes of action involving those who participate in such activities. “Good Samaritan” statutes limit the circumstances in which a person injured by another person who provides emergency medical assistance, transportation, or defibrillator treatment can recover damages. See ORS 30.800; ORS 30.802; ORS 30.807. Other statutes provide individuals with limited immunity for reporting child abuse, ORS 419B.025, and for disclosing information about a former employee to a new employer. ORS 30.178. In those and similar statutes, the legislature has modified the plaintiffs common-law cause of action by, for example, requiring the plaintiff to prove “gross negligence” rather than “negligence,” or by providing limited immunity to defendants for some kinds of conduct. The majority’s decision, like this court’s earlier Remedy Clause cases, allows the legislature to respond to what it perceives to be important public policy needs, as long as it does not eliminate a common-law cause of action without providing an adequate substitute remedy.
Kistler, J., joins in this concurring opinion.According to one comprehensive survey, for 2003,34.9 percent of Oregon doctors had malpractice insurance with a per occurrence limit of $1 million (a decline from 45 percent in 1996), while 26.8 percent had a per occurrence limit of $5 million (up from 22.2 percent in 1996). Oregon Professional Panel for Analysis of Medical Professional Liability Insurance, A Report on Factors Impacting Medical Malpractice Insurance Availability and Affordability p 65 (2004).
Plaintiffs challenge to the existing tort claims act limit — or to any such limit — necessarily would he an “as applied” challenge available only to plaintiff (or a similarly situated plaintiff) whose damages actually exceeded the limit. In Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002), this court rejected a facial challenge to the tort claims act limit. Plaintiff does not ask us to overrule Jensen, and the majority does not do so.
Indeed, the majority reaffirms OHSU’s status as part of the state and therefore partaking of the state’s sovereign immunity, except to the extent waived by statute.