Bill Text: OR SB543 | 2011 | Regular Session | Introduced

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Bill Title: Relating to civil actions against licensed professionals.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB543 Detail]

Download: Oregon-2011-SB543-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1113

                         Senate Bill 543

Sponsored by Senator GEORGE (Presession filed.)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Imposes pleading requirements for professional liability
claims. Requires that claim be accompanied by certification by
claimant's attorney stating that attorney has consulted person
who holds same license, registration or certificate as defendant
and who is qualified, available and willing to testify to
admissible facts and opinions sufficient to create question of
fact as to professional liability. Specifies exceptions.
  Mandates settlement conference in action in which professional
liability claim is made.
  Allows defendant in professional liability claim to request
impaneling of commonsense jury if claim is for more than $50,000.
Requires award of reasonable attorney fees to defendant if
commonsense jury determines that claim is meritless and plaintiff
does not receive money award at trial.

                        A BILL FOR AN ACT
Relating to civil actions against licensed professionals.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) As used in this section:
  (a) 'Licensed professional' means an attorney admitted to
practice law in this state or any person who is required by law
to be licensed, registered or certified as a condition of
pursuing any commercial activity, trade, occupation or
profession.
  (b) 'Professional liability claim' means a claim for damages
against a person who is a licensed professional that:
  (A) Arises out of the provision of services within the course
and scope of the activities for which the person is licensed,
registered or certified; and
  (B) Is based on an assertion that the person failed to meet the
standard of professional care applicable to the activities for
which the person is licensed, registered or certified.
  (2) Except as provided in subsections (4) and (6) of this
section, a complaint, cross-claim, counterclaim or third-party
complaint asserting a professional liability claim may not be
filed with the court unless the claimant's attorney certifies
that the attorney has consulted a person who:
  (a) Holds the same license, registration or certificate as the
licensed professional against whom the claim is made; and

  (b) Is qualified, available and willing to testify to
admissible facts and opinions sufficient to create a question of
fact as to the liability of the licensed professional.
  (3) The certification required by subsection (2) of this
section must be filed with or be made part of the original
complaint, cross-claim, counterclaim or third-party complaint.
The certification must contain a statement that a person
described in subsection (2) of this section is available and
willing to testify that:
  (a) The alleged conduct of the licensed professional failed to
meet the standard of professional care applicable to the licensed
professional in the circumstances alleged; and
  (b) The alleged conduct was a cause of the claimed damages,
losses or other harm.
  (4) In lieu of providing the certification required by
subsection (2) of this section, the claimant's attorney may file
with the court at the time of filing a complaint, cross-claim,
counterclaim or third-party complaint an affidavit that states
that:
  (a) The applicable statute of limitations is about to expire;
  (b) The required certification will be filed within 30 days
after filing the complaint, cross-claim, counterclaim or
third-party complaint or such longer time as the court may allow
for good cause shown; and
  (c) The attorney has made such inquiry as is reasonable under
the circumstances and has made a good faith attempt to consult
with at least one person who meets the requirements of subsection
(2) of this section.
  (5) Upon motion of the licensed professional, the court shall
enter judgment dismissing any complaint, cross-claim,
counterclaim or third-party complaint against the licensed
professional that fails to comply with the requirements of this
section.
  (6) This section does not apply to a complaint, cross-claim,
counterclaim or third-party complaint against a construction
design professional as defined by ORS 31.300. + }
  SECTION 2.  { + (1) In any action in which there is a
professional liability claim as defined in section 1 of this 2011
Act, all the parties to the action, the insurers of the parties
and the attorneys of the parties shall attend and participate in
a settlement conference before a circuit court judge other than
the judge assigned to try the case. The judge shall attempt to
ascertain at the settlement conference whether the action can be
settled by the parties before trial.
  (2) The judge conducting a settlement conference under this
section may waive the attendance of any person for good cause
shown. The judge shall decide what information the parties may
submit at the settlement conference.
  (3) The judge conducting a settlement conference under this
section shall notify the parties of the time and place of the
settlement conference.
  (4) The court shall impose appropriate sanctions against any
person who is required to attend a settlement conference under
this section and who fails to appear or to participate in good
faith. + }
  SECTION 3.  { + (1) If a professional liability claim, as
defined in section 1 of this 2011 Act, of more than $50,000 is
made in any civil action, the defendant in the action may request
that the court impanel a commonsense jury. A commonsense jury
consists of six persons, selected at random from the term jury
list prepared under ORS 10.225. Upon making a request under this
subsection, a defendant shall pay a fee equal to the juror fees
and other costs attributable to impaneling the commonsense jury.
The court administrator shall set a time and place for hearing
before the commonsense jury and give notice of the time and place
to the parties.
  (2) Each party to a proceeding before a commonsense jury under
this section may present evidence and arguments. Each party must
complete presentation of the party's case in not more than two
hours. Proceedings before a commonsense jury shall be conducted
informally. Parties may be represented by attorneys in all
proceedings before a commonsense jury.
  (3) A commonsense jury shall deliberate not more than two hours
on each claim submitted to the jury. Each juror shall then vote
on whether the juror finds that the claim has merit.
  (4) The decision of a commonsense jury is not binding on a
party to a hearing before the jury. However, if the plaintiff
continues prosecution of the case to trial after the commonsense
jury determines that the claim is meritless, and the plaintiff
does not receive a money award at trial, the court shall award to
the defendant reasonable attorney fees attributable to defense of
the case after the entry of the commonsense jury's decision. + }
  SECTION 4.  { + (1) Section 1 of this 2011 Act applies only to
complaints, cross-claims, counterclaims and third-party
complaints filed on or after the effective date of this 2011 Act.
  (2) Sections 2 and 3 of this 2011 Act apply only to actions
commenced on or after the effective date of this 2011 Act. + }
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