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? 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."