Overturning Horton – Part 2

The devastating rebuttal demolishing the corporate spin and half-truths by insurance companies

“This time period where we have no cap on injuries, which we heard testimony would drive doctors away from Oregon, would shorten the supply, would devastate the medical industry, we had a 23% increase in 33 out of 36 counties and a 47% increase statewide. “

Sen. Prozanski: Thank you. Questions? Senator Manning first, then Senator Dembrow.

Sen. Manning: Thank you, Mr. Chair. Thank you for your testimony. I think that you bring up some great points in terms of the value for the insurance company. I have a couple of questions. I think that what this bill provides is more, is broader than just the medical industry.

I am hearing testimony that affects victims of sexual abuse. This is outside of the medical issues that you are focused on at this time. I’d look at this Bill in a broader sense. Injuries, say for example, if [someone] had sustained an injury that prevented him from moving forward with his lifestyle and there was a cap of $500,000, look at the value of his life right now. We don’t know what those people that have been injured on the job or wherever place may have eventually turned into, what their contributions were.

This is a little bit bigger than just the industry concerning insurance. I know a lot of great physicians out there, doctors. As a matter of fact, I had a surgeon that did a wonderful job on my back. I never thought about any kind of repercussions or coming back to claim. It seems to me that there’s a suggestion that, if the cap is raised, then all of a sudden there’s going to be a rush to sue doctors or medical providers. I don’t believe that’s true.

Jim Dorigan: That has been the case and that’s what the studies that our actuaries were saying. I actually lived through the 1999, when the Lakin versus Senco Products knocked out the cap in Oregon. What happened to us is that we had a 30% increase in claims against physicians. Automatically, our reserves went up by 60%, because we had reserved retroactively and this has a retroactive clause. We had to reserve retroactively for cases that were now worth more money. Premiums for physicians just about doubled. Three carriers left the state. It’s a very real cause of problems for medical providers when there are no caps.

Sen. Manning: Okay, then my question is, what prompted that? Was it medical error or was it medical malfeasance? What caused that all of a sudden that you’re treating patients and stuff and then they decide that they’re going to file a claim against the medical profession? I don’t understand that.

Jim Dorigan: What happened, actually, our statistics on cases that we’d successfully defended did not change. We still had 80% of the cases, plus, in court, we were winning, but more cases were being brought, because there was a bigger target. The plaintiffs’ bar more aggressively sought out and filed cases, because there was a bigger pot of gold at the end of the rainbow. That’s what this will create.

Sen. Manning: I think that there are some opportunities here that we need to actually look at the insurance industry and what they’re doing in association with this. I’m still finding this hard to believe that all of a sudden …. The doctors and medical providers that I know are very professional. I know a lot of people have great relationships with them.

Like I said, my vision of this, my broader view of this, this is just more. This is not just dealing with the medical industry. This is dealing with on-the-job harassment. It’s much broader. I’ll be interested in finding out if there might be some language that could be tweaked to be specific. Should it have to go to trial and that the medical provider, in your case, is found not liable, I don’t understand why we would have any issues with this.

If it’s the fear that we might have something based off of some data, I don’t know. I’m a researcher myself, so I know that you have to be able to replicate any type of study. I’m not sure, and I think there might be some other things, but my view of this bill is much broader than just medical industry. I think that it’s worth looking into from my perspective. If there is some specific language that you feel that would be adequate to add to this, then I think that this would be a great opportunity to do so. Thank you, Mr. Chair.

Sen. Prozanski: All right. Senator Dembrow?

Sen. Dembrow: All right, thanks, Mr. Chair. For the actuary, I found the trends that you pointed out very interesting, but I’m wondering, that was based on data that has been collected over a period of time, do we have access to the raw numbers that underlie those studies? Could that be provided to the Committee?

Susan Forray: The publicly-available data that I referred to comes from the National Practitioner Data Bank. That would be, of course, available to anyone.

Sen. Dembrow:  Could you steer us towards that?

Susan Forray: Sure, I can definitely direct that towards you. The data that was relied upon specific to Oregon provided by the coverage providers in Oregon, that would of course be proprietary to those providers, but certainly if you have questions on the analysis in particular, I’m happy to talk about that in more detail.

Sen. Dembrow: Okay. With respect to the increase in the claim amounts as the cap was lifted, couldn’t we look at that as what’s happened is, for a period of time, those caps were artificially being restrained? Then, when the cap was raised, it went up to its normal level, based on the needs of the people bringing the action.

Jim Dorigan: The reality is the needs of the people bringing the action are limited. Their recovery is limited by the insurance policies available. In the majority of physicians in Oregon, 50% carry a $1 million policy limit. The balance of the 50% carry limits of $2, $3 or $5 million. The reality is that the value of these suits and the amount plead in the suits exceeds available policy limits and assets for the physician.

These high demands in these cases serve more as a motivation or a reason to settle cases. Senator Manning, you mentioned about the insurance companies behind these, the company I work for is owned by our policy holders, so we’re a reciprocal, which is similar to a mutual. Two out of the three companies in the state are companies that healthcare providers have set up to make sure that they have access to this critical insurance product. That’s my motivation or my bias, is the physicians.

Sen. Dembrow: All right, thanks, Mr. Chair. We heard one of the previous individuals giving testimony that she felt that her pain and suffering that she’s undergone since some very traumatic experiences that she had were worth more than $500,000, that she’s been experiencing pain and suffering and debilitating effects on her life. Presumably, a jury might agree with her on that, right?

Jim Dorigan: But not impacted, again, by this case, I believe. If that happened, her damages and case were filed when there was no cap on damages. We could actually see what was the result of her case, but-

Sen. Dembrow: Okay, but let’s imagine that the Oregonians today-

Jim Dorigan: If it was covered under the Oregon Tort Claims Act, it would be limited by things we’re not talking about here.

Sen. Dembrow: Yeah, but let’s imagine that that were to happen now. Are you asserting that her pain and suffering isn’t worth a million dollars? That she has an experience, that much level of pain, and suffering, and debilitation in her life?

Jim Dorigan: I have difficulty evaluating what her damages are. I would say, from a public policy standpoint, if you look at the costs of unlimited damage across the board and the damage that it can have to access to healthcare, I think it’s a public policy issue. It’s reasonable to limit damage amounts.

Sen. Dembrow: I think, and just finally, we’re coming to understand the broad ramifications of trauma that individuals like that are experiencing. It seems to me that we, as a society, need to recognize that and not be putting artificial barriers in place that make it even harder for people to cope with that trauma. That’s just an editorial comment.

Jim Dorigan: We’ve talked about the victims of drunk drivers. The reality is that their compensation would not be changed, because you look at the insurance limits that are out there. If you look at any of your policies, I’m sure that none of you have liability limits that exceed a million dollars and even lower limits for those less responsible people in the community.

Although the damages may be there, where the real lottery is, is if you’re injured by somebody that has the assets or the high enough limits that you can potentially recover.

Sen. Prozanski: All right. I have just a couple questions, but clarification. I just want to make sure. Jim, I just want to go over. At the beginning in your testimony, you talked about 19 states. I think you said “western states”?

Jim Dorigan: Yes.

Sen. Prozanski: Could you just give us, not right this moment, if you could provide to us those 19 states so we can see that? I’m assuming-

Jim Dorigan: As part of my testimony, I put charts that have a chart for both bodily injury and wrongful death by state. You can look at those.

Sen. Prozanski: All right. Do you have it for beyond the 19 states or just the 19?

Jim Dorigan: I do. I could put that together, but we tried to look more at the West Coast.

Sen. Prozanski: I understand that. That’s the part I guess I’m kind of scratching my head, because you also then used an example about what happened in Florida. Knowing that’s not on the West Coast, I was just interested that all of sudden now we’re looking at the East Coast.

Jim Dorigan: The only reason I put Florida in, Senator, is that we are the largest insurer of physicians in Florida. I have the available data when the cap was knocked down. I got that from my counterpart that operates in Florida.

Sen. Prozanski: Okay, but that would be great if we can have all the states. The last thing, I guess, is just kind of a statement. This part of where you said, “A pot of gold at the end of the rainbow,” insinuating that … I guess I’m not sure exactly what you mean, but my take on that is that someone was injured somehow, somewhere, whether it was medical, whether it was non-medical. I guess it seemed like, in the context that I heard you saying it, that this was only coming forward because of the plaintiffs’ bar. Is that where we’re at as to your perspective on this?

Jim Dorigan: From my perspective is that when there is a larger chance for recovery and a potential for unlimited damages, there will be more cases. Those cases will be more difficult to resolve because of the potential for unlimited recovery.

Sen. Prozanski: The analysis, then, is the lower the cap is, the less chance that someone’s going to be seeking some type of, I don’t want to say restitution, relief from injuries that they received, whether it’s in the medical area or a non-medical event?

Jim Dorigan: I would say that if we all evaluate cases that are brought against physicians, cases where it’s within the standard of care, but the injury is severe, in other words a sick person becomes more sick, I think that there is an added motivation to pursue litigation in that case and with a potential recovery. Whereas, if the recoveries are limited, we may not see that particular case filed.

Sen. Prozanski: Okay. Is it your understanding that, whatever we do with this Bill or any future Bill regarding wrongful death, that the Senate Bill 483 that we did pass is not going to be impacted, that we’ll still have that framework to allow for those open, frank discussions to try to reach resolutions without having litigation?

Jim Dorigan: I think we’re all actively pursuing the Early Discussion and Resolution. We’ve invested quite a bit to educate our healthcare providers across the state on how to institute those discussions.

Sen. Prozanski: All right. I’m going to ask counsel if maybe we can put a note for it. I’d like to, at some point, have a review about where we’re at, because I don’t think we had that scheduled for this session. It seems to me that it’d be appropriate, because I had a lot of hope. I’ve heard a lot of support, but now I’m wondering if it’s actually being utilized. Senator Linthicum?

Sen. Linthicum: Thank you, Mr. Chair. In terms of following-up with the Chair, what he was asking about, you made a statement with regard to eliminating a cap and doubling one cap and eliminating the others would directly impact supply, and with regard to supply, supply in rural areas in particular, as those are hardest hit.

Then, the other item that was somewhat alluded to, and I’m not sure if you mentioned it, was negatively impact supply of physicians in medical services and positively impact a need for litigation, et cetera. Is that a correct assessment? That actually may have come from one of the other respondents. If you’d care to respond?

Kevin Reavis: In terms of supply, yes. In terms of if Oregon is not an attractive place to raise a family and provide care in the community because of the defensive nature based on malpractice premiums, physicians will seek to practice in another state that’s more friendly. That’s basically the entirety on the supply side and obviously then it directly impacts access.

Jim Dorigan: One of the access issues we saw in 1999 going into the early 2000s is that neurosurgeons discontinued doing pediatric care. We were at one point in the state when there were two neurosurgeons that would do pediatric care and there was a lot of life flights up to OHSU.

Sen. Linthicum: Just a follow-on, for the record, I’d like to note that the Deputy Political Director of Oregon Trial Lawyers Association submitted several items that are in the testimony list. In terms of that demand and supply issue, we see that showing up in who’s testifying this morning.
Sen. Prozanski: I understand there was no one else that signed up, so the last individuals I have is Melissa Erlbaum, Kimberly McCullough. I’m going to have those two come up. Then, I have Betsy Earls and Arthur Towers.

Melissa Erlbaum: Okay. My name is Melissa Erlbaum and I am the Executive Director for Clackamas Women’s Services. I’ve submitted written testimony, so in the interest of time, I’ll just recap real quickly what we do as an organization and then read the important component of the testimony.

We’ve been in service for over 30 years serving survivors of domestic violence, sexual assault, elder abuse, and trafficking in Clackamas County throughout the state of Oregon. That is why I am interested in being here in support of this Senate Bill 487.

We know that service requests are growing and the need is great for survivors, especially as we begin to understand the complexity of trauma. We are a proud member of the Restore Justice for Survivors Coalition, because we see firsthand how imperative it is for the women and children that we serve, as well as for those who suffer silently, to know that they have support and their abusers will be held accountable for their actions through the criminal and civil justice systems.

It is empowering for victims to know that a jury of 12 Oregonians just like them will hear the facts of the case and determine an outcome impartially. Sadly, we often see cases where responsible actions by businesses, institutions, organizations could have been taken to prevent the violent acts against our clients. Such responses negatively impact and effectively create additional barriers to the pursuit of safety and justice for these folks.

Consequently, when groups turn a blind eye, refuse to act, or fail to implement policies to protect us, they should be held accountable. The tragic story of Betty demonstrates this. Betty was a 73-year-old, when she was transported by ambulance to a hospital for heart surgery. While in the back of the ambulance, she was sexually assaulted by the EMT who was serving her.

This wasn’t the first incident. There had been 35 complaints to the company about this employee. Instead of pulling from services and investigating, the company continued to allow him to be alone with female patients. The assaulter was later sentenced to five years in prison and the company was found negligent for doing nothing to protect the other female patients.

As a result of this case and the five cases of his other victims, the emergency response company made changes to the ambulance design. There is no longer a wall between the driver and the EMT patient area, enabling the driver to have an unobstructed view of the back of the ambulance.

For us, this is a very clear example of positive policy change coming from holding institutions accountable and demanding better and safer systems. As this story and countless others attest, survivors deserve justice. We can no longer afford to sit idly by and allow abuses to take place without accountability. I hope you will join our desire to restore justice by supporting Senate Bill 487. Thank you.

Sen. Prozanski: Thank you. Kimberly?

Kimberly McCullough.: Chair Prozanski, members of the Committee, my name is Kimberly McCullough. I’m here from the ACLU of Oregon. I’m here to provide a slightly different frame for this issue, which is that this is really a basic civil rights and civil liberties issue. The right to a jury trial is something that was crucially important to both our nation and our states’ founders, as we find it both in the Federal Constitution and in the Oregon Constitution.

In fact, when Oregon voters fought to have citizen initiatives in the early 1900s, one of those first initiatives was to strengthen the power of juries and that passed overwhelmingly. If an Oregonian has a traumatic life-changing event, they have a constitutional right to hold the negligent party accountable for those actions. When we put one-size-fits-all caps, that really undermines the judicial branch as a pillar of our democracy.

You, as legislators, have a opportunity right now, I think, to really restore the rights of the wrongs in the Court’s recent Horton decision, which, essentially, what it did is it said that Oregonians have a right to a jury trial, but not to the decision that the jury makes, which really just makes it procedural and not meaningful.

It really makes little sense that we entrust juries with decisions about criminal justice matters and convict people and imprison them based on what a jury decides and yet we don’t entrust juries with those same types of decisions about the impact of lifelong injuries.

Just to summarize, one-size-fits-all justice, really, it goes against our basic civil rights and liberties. It allows an across the board cap to be placed on the value of someone’s life and the dramatic changes that folks go through because of someone else’s negligence. For those reasons, we urge your support of this bill.

Sen. Prozanski: Thank you. Any questions? Ladies, thank you very much. Our last two speakers/ presenters will be Betsy Earls and Arthur Towers. I think, for balance, Betsy, I’m going to ask you to go first.

Betsy Earls: Thank you, Mr. Chair, members of the Committee. For the record, Betsy Earls, representing Associated Oregon Industries and Oregon Business Association. As I think we’ve discussed in this Committee before, AOI and OBA are in the process of merging, so our policy positions are the same for all intents and purposes.

AOI and OBA are appearing before you today in opposition to Senate Bill 487. It’s our position that Senate Bill 487 goes too far at a time when cost and access issues continue to increase for healthcare and when stability in the healthcare system is so uncertain.

That’s an important point, but I wanted to, as the first speaker tried to do or did do, put a little bit of a different frame on this bill for you from the standpoint of the business community. Oregon has long balanced the needs of plaintiffs for a full and fair recovery in Oregon against the needs of the business community for predictability.

I think you see that attempt at balance in the economic damages awards that are allowed in Oregon, which are unlimited. That includes, as you know, past and future medical costs, lost wages, potential lifetime earnings, any other conceivable lost, almost. Those are all fully recoverable and we think that that’s a fair approach to Oregon’s liability system.

That’s balanced against the needs of the business community for some predictability through limiting or capping non-economic damages, pain and suffering damages. For a while, after Lakin, obviously those were uncapped, and the Horton decision has put a cap on those again. We support that cap and feel that it is a important step to reinforcing the predictability of what organizations or Oregon corporations can expect in terms of Oregon’s liability system.

As you’ve heard before just this morning, a majority of western states do cap their non-economic damages at $500,000 or below, so this state is in good company if we continue to remain at the cap that Horton placed on us. I think the last thing I want to point out to you is, and it’s of particular concern to the business community and goes directly to the issue of predictability, is the retroactive nature of this bill.

The bill applies increased damages cap retroactively to causes of action that arose before the effective date of the bill. This is really problematic for the business community, not only in terms of litigation decisions that were made before the Bill passed, if it does pass, but also in terms of settlement decisions and other calculations that are made in the course of going through litigation and those conversations with the plaintiffs. Again, we support the balance that Oregon currently has struck between the needs of plaintiffs and the business community for predictability, while also fully recovering damages. We urge you to oppose Senate Bill 487.

Sen. Prozanski: Thank you. Arthur?

Arthur Towers: Chair Prozanski, members of the Committee, I am extremely proud to be the Political Director for Oregon Trial Lawyers Association. My name’s Arthur Towers. I wanted to address a number of the issues that have been raised today. I think I only have two new ones to raise.

First of all, in May of 2000, voters spoke loudly and clearly on this issue. The issue before you today in terms of whether or not there should be caps on compensation for injuries was put to voters. Voters, by about a 70 to 30 margin, it was victorious in every county, said, “No, injuries should not be capped.” The people that you’ve heard from today should not have their compensation capped.

A second thing that was raised had to do with punitive damages that Mr. Dorigan spoke about. It’s important to remember about punitive damages that 70% of the punitive damages go to the state in one form or another, but the victim is taxed on the full hundred percent, so the remaining 30% will often go in the form of taxes. When it comes to the punitive damages, the survivor of the negligence often receives $0 out of the punitive damages.

Now, I want to go to unpacking some of the information that was provided. I felt bad for the opponents of this who didn’t seem to be able to have the opportunity to advance to coordinate their testimony, so I wanted to pass out some information here.

Mr. Dorigan provided some new information today, or at least new for me, where he said that there’s 79 physicians that are currently in litigation and there’s an additional, I guess, 79 injury cases, as I understood it, 10 death cases. Those are two to three years worth of cases. If that’s been an increase of 30%, because the caps were not in effect, that means that it went from about 60 to 79 on the injury cases and about seven to 10 on the wrongful death cases.

As you understand, what we’re talking about with the injury cases is going back to the system that’s been in place for the last 17 years. Those cases will be treated just the same as they would be in April of 2016, just before the May 5th Court decision.

In the wrongful death cases, again, if we’re talking about these 10 wrongful death cases being $500,000 a piece, if that’s what the verdict is going to be, stick with me here for a second, the current cap is $500,000, so 10 outstanding cases, which again the other witness from Milliman testified as two to three years worth, 10 cases would be $5 million, 10 times $500,000.

Now, we talking about 10 cases times one million, which is a astronomical jump from $5 million to $9 million. Given this enormity of the healthcare industry, it makes a huge difference in the lives of those grieving families. Five million to nine million in the healthcare industry? That’s a rounding error.

For the last 17 years — Senate Bill 487 would go back to that system that’s been in place from 1999, until 2016 in injury cases. We have the ability to look at what happened to physicians, the supply of physicians that Senator Linthicum was concerned about, over those 17 years.

The information that we put forth is from the Oregon Medical Board, so the state studied this issue and came up with the statistics. You can see on the front page of my testimony that, in 2000, just after the cap went into place, we had 7,848 licensed doctors in Oregon. In 2015, we had 12,447 licensed doctors in Oregon, an increase of 47%, while the population was rising by 18%.

Now, I am sensitive to the issue of availability of doctors in rural Oregon. If you look at that bottom paragraph of the first page, the statistics from the Oregon Medical Board from 2004, forward, which is what we can put our hands on, the number of doctors in 33 of the 36 counties increased by more than 23% over that time period, 2004 to 2015.

This time period where we have no cap on injuries, which we heard testimony would drive doctors away from Oregon, would shorten the supply, would devastate the medical industry, we had a 23% increase in 33 out of 36 counties and a 47% increase statewide. Coos County only had a 16% increase, but Lake County and Sherman County lost. I don’t want to minimize that, but there’s those two counties.

The one place where we weren’t able to directly rebut the numbers was around OB/GYNs in rural Oregon. Again, I don’t want to minimize that either, but if you looked at the demographics of Oregon, the Portland metropolitan area has become a magnet for young people, women of child-bearing age, in a way that Sherman County and Lake County and some of these other counties have not been.

That’s unfortunate, but again, if you’re considering where to set up medical practice, especially for that population, you got to go to where the business is, I would argue. That would make more business sense from the physician’s perspective.

The other point that was raised that I wanted to address was around Chair Prozanski’s questions regarding the Early Dispute Resolution Program. Remember that that program was put into place when there were no caps on injuries. It should not be severely impacted or impacted at all by going back to the system that was in place when the EDR program was established.

The next point that I’d like to make is that we talked about pots of gold at the end of the rainbow and we talked about winning the lottery. I would submit to you that many of the witnesses that you heard from in support of this bill don’t feel like they’re at the end of the rainbow. They don’t feel like they won the lottery. I found that language disserving.

I also want to talk about the malpractice issue for just a minute. According to a New England Journal of Medicine study in 2016, one-third of all medical malpractice cases are linked to 1% of the physicians. I would submit that there’s a better way to solve that problem, that’s on page two of the testimony, than limiting the rights of people who survived serious medical errors.
It was testified that all the medical bills are covered by economic damages. I want to set the record straight on that issue as well. The medical bills that are covered in the economic damages are those that can be proven at the time of the jury decision. What that means is that there’s a certain percentage.

A large number of paraplegics get bladder infections and you can predict the number of bladder infections over the course of a life, however, the unlucky one or two out of a hundred will get sepsis. We’ve had people that our members have fought for who’ve had sepsis, where they ended up in the emergency room at OHSU in intensive care I guess for several months because of the infection caused by the injury. It couldn’t be proven at the time of the trial, but the medical bill was there nonetheless. The non-economic compensation covered some of that cost. I have a hard time explaining that issue, hopefully I did it in a clear fashion.

Ms. Earls, among others, testified about what they term “retroactivity.” What they’re proposing is that there would be one set of rules for cases that happened before May 5th of 2016, when the Supreme Court issued its ruling, a second set of rules for cases between May 5th and the effective date of the Bill, and then a third set of rules after the effective date of the Bill.

For the number of cases that we’re talking about here, it feels like that would be a difficult set of circumstances to have three sets of rules for open cases. I want to close my remarks by bringing this back to the sort of thing that we ought to be thinking about.

This week and the last week, Victor Pierce had a case that he was involved in deciding. Mr. Pierce has spent 22 years working on the assembly line at DaimlerChrysler. His goal was to work there for about 30 years and then retire. He put in 22 years and over the last years of his career there, he started to be subjected to unspeakable acts of harassment on the job. There was racist graffiti, there were racist comments. There were nooses hung in his work place. There were nooses tied to the back of pickup trucks to indicate to Mr. Pierce, as an African-American, that that’s what they wanted to do.

Daimler told him at different points, “You’re imagining some of this stuff,” or if it wasn’t imagination, they’d catch people and not properly punish them. It turned out there were more than a dozen workers impacted by this. There’s this systematic pattern of racial harassment that is utterly disgusting in 2017 in Oregon, 2017 in America.

Mr. Pierce had the courage to take his case to trial, wasn’t sure if he would be able to get a fair trial as an African-American man, but told his story to the jury. They heard the Daimler side of the story and they heard his side of the story. They rendered a decision that these acts were despicable and that Mr. Pierce was due $750,000 in compensation.

Unless Senate Bill 487 passes, Mr. Pierce is likely to see his compensation reduced by more than 30%. I’m really, really privileged to be part of the 25 or so member coalition to restore justice for survivors, really proud to be fighting for the people that you’ve heard from today, really proud to be part of that team. I hope that you join me by voting yes on Senate Bill 487. Thank you.

Sen. Prozanski: All right, questions for anyone on the panel? Senator Thatcher first.

Sen. Thatcher: Art, you were talking about economic damages not necessarily being properly reimbursed because you only get what you can prove at the time, I guess based on probabilities of certain things, outcomes. Is there any way to quantify how much? Okay, so a person receives economic damages that are provable, but then later, a bunch of other economic damages essentially occur. I’m just wondering if there’s a range of what that difference is between what’s received and what is actual?

Arthur Towers: Chair Prozanski, Vice Chair Thatcher, I’m not positive the answer to your question. I bet if I looked at my phone, I’d have 40 texts telling me what the answer is. I think that the point that I would make is that it would go to Ms. Earls’ testimony. I think that the business community seeking the predictability would be very upset about having to go back and do over as new … Oh, I’m sorry. Is that not …

Sen. Thatcher: I’m not asking for later coming back, I’m just wondering how much, if there’s some sort of estimate out there that most people, when they receive economic damages, actually receive 20% less than what actually happened? I just don’t know. I don’t know if there’s any information like that out there.

Arthur Towers: Senator Prozanski, Chair Thatcher, I’m sorry I misunderstood your question. Yeah, I do not know the answer to that, but I will see if I can find out.

Sen. Prozanski: Any other questions? Senator Dembrow.

Sen. Dembrow: Thanks, Mr. Chair. Betsy, you haven’t seen the packet that Arthur provided us with, but he offers a set of charts that compare Oregon’s average premium rates in a number of disciplines, as opposed to states that don’t have caps, such as ours. It suggests that Oregon is not out of line in any way in terms of our premium amounts relative to states that don’t have caps or at least caps at our level.

I’m wondering, do you have a sense, just from the business association perspective? Do we have higher than average caps? Is that what is the sense of the industry? I assume that those comparisons were done before the Horton decision. Just wondering. I know you haven’t seen this, but if you could just let me know what the sense within the industry is of, is Oregon an outlier in terms of our premium amounts?

Betsy Earls: Maybe we could let you know.

Sen. Prozanski: All right. The only thing I was going to ask, Betsy, in your testimony, you did make the statement, “Senate Bill 487 goes too far.” Can you just explain what you mean by that, in the sense that there’s an alternative that the business community would like to put on the table, or just status quo is what we should stay with?

Betsy Earls: Mr. Chair, thank you for the question. I really do believe and AOI believes that the balance that the legislature has struck and that the Court recently upheld is an appropriate balance to cover the needs of victims, as well as the business community, and provide a stable business climate looking forward for businesses that are thinking about coming to Oregon. It’s one of the things they look at, liability costs and potential liability and the liability system. We would like to be able to continue to put that balance out there as one reasonably attractive piece of the state business climate picture.

Sen. Prozanski: Yeah, okay. I just want to make sure, if you had an alternative, I was going to say maybe we should have a little work group. All right.

Arthur Towers: Chair Prozanski, I don’t mean to take up more of the Committee’s time, but I will, just to say that the business communities, for the last 17 years, had periods of great growth, periods of decline based on the national economy and a variety of other factors. I would say that the 17 years, which almost coincides with the 17 years I’ve lived in Oregon, that the economy here has mushroomed. Thank you very much.

Sen. Prozanski: All right. With that, I want to thank everyone that came forward today and gave us their testimony.