Oct 29, 2009
How the Oregon Tort Claim Act prevented a patient at Oregon State Hospital from seeking justice after a hospital employee had sex with his roommate.
David Denichenko is the resident at Oregon State Hospital who recently filed a lawsuit against the hospital for failing to supervise a female employee who had sex with his roommate. He asked OSH to pay him damages for failing to prevent these liaisons and failing to provide him with counseling after they were discovered. Mr. Denichenko brought his action in small claims court. He did not have a lawyer.
On October 23, the Salem Statesman-Journal reported that the case was "tossed on technicality." A state assistant attorney general had asked the court to dismiss the case because it was not filed within the 180 day time limit set by state law. The judge agreed. As reported in the Statesman-Journal: "The time clock began running Dec. 24, when Butler [the employee] was placed on leave, and expired June 22. Denichenko filed his claim weeks after the deadline."
Why is a person who is held in a state mental hospital required to adhere to such a technicality in order to seek justice? The time limits can be extended in special circumstances such as when the person is a minor or incapacitated or when the government has actual knowledge of the claim.
Why is a person who is held in a state mental hospital required to adhere to such a technicality in order to seek justice? It all begins a few centuries ago in England. Back when the King or Queen was (at least in theory) all-powerful, a citizen was not allowed to seek legal redress against the sovereign without his or her permission. Despite the fact that American colonists fought to free themselves of royalty, our jurists chose to adopt this concept of "sovereign immunity" and to interpret the U.S. Constitution as embracing the concept. And so, even though our Supreme Court has announced from time to time that no person is above the law (see its ruling in the Bill Clinton case), governments are permitted to be.
Oregon, like other states, has set ground rules for when and how it, and local governments, can be sued. One of those rules is that a person who wants to sue state or local government must notify the government of the claim within 180 days of their loss or injury. This can be done by sending the government a "tort claim notice" in writing that sets out the details of circumstances underlying the claim. The time period is extended to one year if it involves a wrongful death. The time limits can be extended in special circumstances such as when the person is a minor or incapacitated or when the government has actual knowledge of the claim.
Both government and regular citizens have the protection of a "statute of limitations" that requires claimants to take care of business in a reasonable period of time. Governments, however, require additional and earlier notice of a claim. Is that requirement fair when applied to a person in a state mental hospital? Could the hospital be unaware that a resident, who is under constant care and supervision of a professional treatment team, believes that he has been emotionally harmed by its staff?
However you may answer those questions, it's clear that the sovereign has won this round. According to the Statesman article, Mr. Denichenko acknowledged the cleverness of his adversary, the government: "The biggest lesson I learned is, they're very good at this stuff."
Oct 24, 2009
How scrambling for CLE credits can yield better state laws.
As a lawyer, I must attend 45 hours of “continuing legal education” every three years. This requirement is administered by the Oregon State Bar. It divides Oregon's legal community into three groups so that, each year, about about one third of my colleagues get a slight look of distraction in their eyes because it is their “reporting year.” This may be an exaggeration on my part; many lawyers are methodical people who regularly attend seminars over their three year reporting period. But every autumn, some, like me, embark upon a couple of months (for some, weeks; for others, days) of cramming in order to satisfy our licensing requirement. And yes, this is my reporting year.
So I’ve been doing some freshening up in my primary practice areas of health law, disability law, elder law and nonprofit law. Part of the fun of doing this is when a presenter talks about new legislation in their field that I had a hand in moving through the legislature. It’s a good reminder that most laws are created by a small number of people hashing things out in the Capitol in an effort to solve a problem. How a new law will actually work in the real world is hard to fully predict. Sometimes it will be the lawyers and judges in the room who are charged with implementing things that seemed to make sense by us advocates and lobbyists. Sometimes they are not happy about it.
A couple of examples came up today in a seminar on guardianship. The 2009 legislature passed Senate Bill 16 that allows advance directives for health care to be used to admit a person to a psychiatric ward for treatment of behavior caused by dementia. Lawmakers also passed House Bill 2137 that allows the Department of Human Services to seek a guardianship for any person it believes needs a guardian to protect her from abuse. DHS is also permitted to release otherwise confidential information to the court when it seeks a guardianship.
On the advance directive bill, a speaker commented that many users of this document would be shocked to learn that they could be slapped into a psych ward because they had signed something they thought was about end of life decisions. On the guardianship bill, a speaker said that some judges and court clerks had complained about provisions requiring files to be sealed to maintain privacy.
Maybe they have good points, maybe not. (I agree with the first critique and am not surprised by the second - any bill that requires someone to do something that they didn't have to do before is likely to annoy them.) Whatever the merits, these seminars help to publicly raise issues that can be sorted out in legislative sessions to come. In the case of the advance directive, there is already a work group slated to study how to proceed.
Some critics of government think that legislatures meet too often and only make mischief. I'm of the view that citizens should be in constant conversation about our mutually-agreed rules. There should be ample opportunity to adjust, fine-tune and correct as we go. In doing so, we have our best shot at self-government, rather than having rules that are ignored or unjustly enforced. And even, I suppose, if I have to listen up as I scrape together my 45 continuing legal education credits by December 31.
Oct 20, 2009
Staying in touch with two of our communities: state hospital residents and Portland lawyers.
What is the value of getting a bunch of people into a room? As technology and fuel cost expand, there has been increased emphasis on saving travel costs through increased use of conference calls, web casts, and video conferencing. I’ve found myself at a number of gatherings in the past week (in fact, I’m in a meeting as I write this) and each has been valuable. How come?
Last Tuesday, DRO Board President Michael Bailey and I hopped into my car, picked up Ollie Cantos (national disability advocate) and Elizabeth Arledge (DRO Communications/Development Director) and drove to Oregon State Hospital (OSH) for an evening meeting. DRO has an advisory council for our program that serves folks with mental illness (PAIMI). It meets every two months. Once each year, it convenes at OSH and conducts a forum in which residents line up to use a microphone to share what’s on their minds. We were in my car were driving down to listen up.
The elected chair of our PAIMI Advisory Council (PAC) is a resident of the OSH Forensics Program. One PAC member is a former resident. A majority of PAC members are individuals with mental illness. In the past year, the PAC has also conducted meetings at the Portland campus of OSH and at Blue Mountain Recovery Center in Pendleton. We at DRO (and OSH residents, I noticed) understand that this is a group that knows what it’s talking about.
You might think that sitting in the shabby OSH gym for two hours listening to people’s problems would be a bummer. I found it energizing. We heard about people’s anxiety about changes in how the hospital is run and about the new hospital that’s being built. We heard frustration about the criminal justice system and the Psychiatric Security Review Board. Many people felt that they didn’t understand what they were getting into when they chose the insanity defense. Some praised staff, others were critical. Some OSH policies were questioned. In sum, it was an informative, constructive discussion.
The next night, I attended the fall social event of the Multnomah Bar Association. It was a reception in a large room at the University Club in Portland. The venue was packed with lawyers in suits, chatting and drinking and munching hors d'ouevres. It provided me with a chance to talk with some folks about what DRO is doing, the importance of health care reform for people with disabilities, and just let some people know that we exist. I was putting a face to our mission: disability rights.
I couldn’t help but compare my consecutive nights in large rooms with voluntarily medicated participants. The contrast between the social advantages of the groups could have hardly been more extreme. But both events were about communication and community. Everyone who participated had a chance to learn about each other, discover alliances, identify opportunities and share challenges. In each case, I couldn't imagine an electronic alternative being as effective as face time.