
FILED:  April 2, 2004
IN THE SUPREME COURT OF THE STATE OF OREGON
MICHAEL D. CREW,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent,
LORI GARCIA,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S51148, S51150)
(Consolidated for Review and Opinion))
En Banc
On petitions to review ballot title.
Submitted on the record March 8, 2004 (S51148) and March 9, 2004 (S51150).
John A. DiLorenzo, Jr., of Davis Wright Tremaine LLP,
Portland, filed the petition for petitioner Crew.  
Steven C. Berman, of Stoll Stoll Berne Lokting & Schlachter
P.C., Portland, filed the petition for petitioner Garcia.
Denise G. Fjordbeck, Assistant Attorney General, Salem,
filed the answering memoranda for respondent.  With her on the
answering memoranda were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor General.
GILLETTE, J.
Ballot title referred to Attorney General for modification.
GILLETTE, J.
These ballot title review proceedings under ORS
250.085(2), which we have consolidated for purposes of
disposition, concern the Attorney General's certified ballot
title for a proposed initiative measure, denominated by the
Secretary of State as Initiative Petition 128 (2004).  The
proposed measure, if adopted, would amend the Oregon Constitution
by adding a section that would limit the total amount of fees
that an attorney or attorneys could charge for the prosecution of
a plaintiff's medical malpractice action against specified types
of defendants.  The limit would be $100,000.  It would apply
regardless of whether the fee agreement between the plaintiff and
the attorney was for a contingent fee or an hourly rate,
notwithstanding the amount that the plaintiff recovered, and
irrespective of the number of attorneys or number of defendants.
The present case involves two separate petitions that
challenge the Attorney General's certified ballot title for the
proposed measure.  Both petitioners are electors who timely
submitted comments to the Secretary of State concerning the
Attorney General's draft ballot title.  They therefore are
entitled to seek review of the resulting certified ballot title
in this court.  ORS 250.085(2).  We review the Attorney General's
certified ballot title to determine whether it substantially
complies with the requirements of ORS 250.035.  See ORS
250.085(5) (setting out standard of review).  In the present
instance, we conclude that it does not.  We therefore refer the
ballot title to the Attorney General for modification.
The proposed measure is not extensive.  We therefore
set it out verbatim for purposes of reference:

"Section ___. (1) Notwithstanding any other
provision of this Constitution, in any personal injury
or wrongful death claim in which an injured patient,
the patient's legal representative or the patient's
estate seeks to recover damages from any Oregon
licensed healthcare provider or entity for malpractice
while acting within the scope of the healthcare
provider or entity's license, the attorney fees charged
to the patient, the patient's legal representative or
the patient's estate by one or more attorney(s),
whether based on a contingency fee or an hourly rate,
shall not exceed a total of $100,000, exclusive of
actual expenses and costs reasonably incurred, whether
received by judgment, settlement, or otherwise, and
regardless of the number of plaintiff's attorneys or
defendants.  Notwithstanding the above, in cases
covered by this subsection, attorney(s) and client
[sic] may negotiate attorney fees, whether based on a
contingency fee or an hourly rate, in an amount not to
exceed $100,000.
"(2) This amendment is self-executing upon
passage, does not require implementing legislation and
shall apply to all attorney fee agreements covered by
subsection (1) that are entered into on or after
January 1, 2005."

The Attorney General has certified the following ballot
title for the foregoing proposed measure:

"AMENDS CONSTITUTION: LIMITS ATTORNEY FEES
NEGOTIATED BETWEEN ATTORNEYS, PATIENTS INJURED
BY 
HEALTHCARE PROVIDER TO MAXIMUM $100,000
"RESULT OF 'YES' VOTE: 'Yes' vote limits right of
patient, patient's spouse, patient's legal
representative injured due to fault of healthcare
provider to negotiate fee their attorney will receive.
"RESULT OF 'NO' VOTE: 'No' vote retains current
law allowing attorneys and their clients to negotiate
amount of fee attorney receives in action arising from
fault of healthcare provider.
"SUMMARY: Amends Constitution.  Current law places
no limit on fee agreements between injured patients,
their spouses, or their legal representatives and the
attorneys who agree to represent them, unless the
resulting fee is excessive or illegal.  This measure
limits attorney fees in actions based on fault of
healthcare provider to a maximum of $100,000 regardless
of the result achieved.  The measure applies to claims
for patient injury or death caused by a healthcare
provider or healthcare entity such as a hospital.  The
limitation applies regardless of the number of
attorneys involved in representing the patient,
patient's spouse, or patient's representative and
regardless of the number of defendants against whom
claims are made.  Restriction does not apply to
attorneys for healthcare provider or entity.  Other
provisions."

Crew and Garcia filed separate petitions seeking to have this
court either modify the foregoing certified ballot title or, in
the alternative, refer it to the Attorney General for
modification.  Petitioner Crew challenges all parts of the
Attorney General's certified ballot title; petitioner Garcia
challenges all parts except the summary.  We consider the
substantive arguments of each petitioner in connection with the
pertinent part of the ballot title.
THE CAPTION
The caption is a statement of not more that 15 words,
not including (when appropriate, as it is here) the words "Amends
Constitution," that reasonably identifies the subject matter of
the proposed measure.  The text of the proposed measure
determines the subject matter of the proposed measure.  ORS
250.035(2)(a).  As noted, the Attorney General's caption states: 

"AMENDS CONSTITUTION: LIMITS ATTORNEY FEES
NEGOTIATED BETWEEN ATTORNEYS, PATIENTS INJURED
BY
HEALTHCARE PROVIDER TO MAXIMUM $100,000."  

Petitioner Crew objects, first, to the inclusion of the
term "negotiated" in the caption.  The proposed measure is not
about "negotiation," he asserts, but, rather, is about a
"limitation on the amount of attorney fees which an attorney can
charge to a client in a healthcare malpractice action."  We agree
with petitioner Crew that the caption's focus on "negotiation" is
misleading; the true subject of the proposed measure is the
limitation on attorney fees that may be charged.  
Petitioner Crew next argues that the Attorney General's
caption is misleading in that it refers to "patients injured by
healthcare provider[s]," without acknowledging that the scope of
the proposed measure is more limited.  Specifically, petitioner
Crew argues that the proposed measure purports only to limit
attorney fees charged for medical malpractice actions in which
the tortfeasor healthcare provider or entity was practicing
within the scope of the tortfeasor or entity's license.  Again,
we agree.  The scope of the proposed measure would not reach, for
example, malpractice by a chiropractor who attempts to perform
certain kinds of surgery, but the wording of the Attorney
General's caption would lead to the impression that the proposed
measure would extend to attorney fees charged in such a case.
Finally, petitioner Crew asserts that the Attorney
General's caption is misleading in failing to clarify that the
scope of the proposed measure would be limited to attorney fees
and does not purport to limit expenses incurred in prosecuting a
case.  The Attorney General responds -- and we agree -- that the
average voter will not confuse the two concepts, and therefore
will not be misled.  That argument is not well taken.
For her part, petitioner Garcia argues that the
Attorney General's caption, which refers only to "patients
injured" by healthcare providers, is misleading in that it makes
it appear that the injuries in question might be purely
accidental.  That appearance is misleading, petitioner Garcia
asserts, because the kinds of malpractice liability to which the
proposed measure refers ("any personal injury or wrongful death
claim") all require some degree of fault.
We agree with petitioner Garcia.  Under existing law, a
trier of fact may award damages to a patient against a healthcare
provider, but only if the trier of fact finds that the healthcare
provider was, at the least, negligent in a way that caused the
patient's injury.  See, e.g., Ritter v. Sivils, 206 Or 410, 413,
293 P2d 211 (1956) (healthcare provider's liability based on
failure to exercise due care).  Put differently, the trier of
fact first must conclude that some level of fault attends the
healthcare provider's behavior that caused injury to the patient. 
See id. (healthcare provider not "warrantor of cure"); Crewse v.
Munroe, 224 Or 174, 177, 355 P2d 637 (to same effect). 
There are three possible levels of fault that could
justify an award of damages in medical malpractice actions:  
negligence, recklessness, and intentional acts.  By its terms,
the limit in the proposed measure appears to apply to a medical
malpractice action based on any of those levels of fault.  But,
as relatively broad as that coverage may be, the Attorney
General's caption suggests that the scope of the proposed
measure's coverage is broader still:  According to the Attorney
General, the proposed measure would extend to any attorney fees
to be charged in connection with any case in which a patient was
"injured."  That is incorrect.  There must be some degree of
fault involved.  The Attorney General now concedes that the
caption must address that topic.  We agree.  
Petitioner Garcia also objects to the Attorney
General's failure to refer in the caption to actions for wrongful
death, as well as for injury.  Again, the Attorney General now
agrees with that point, as do we.  Without including the
information that the limit prescribed by the proposed measure
would apply to actions for wrongful death, as well as to actions
for injury, the Attorney General's caption is underinclusive and
misleading.
In summary, we find the Attorney General's caption to
be deficient in a number of particulars, all of which have a
significant potential to mislead voters.  As such, it fails to
comply substantially with the requirements of ORS 250.035(2)(a). 
The Attorney General must correct the caption.  See Mabon v.
Myers, 332 Or 633, 637, 33 P3d 988 (2001) (caption should
identify subject matter of proposed measure in terms that will
not confuse or mislead potential petition signers or voters).
THE "YES" VOTE RESULT STATEMENT
As noted, the Attorney General's "yes" vote result
statement provides:  

"RESULT OF 'YES' VOTE: 'Yes' vote limits right of
patient, patient's spouse, patient's legal
representative injured due to fault of healthcare
provider to negotiate fee their attorney will receive."

Petitioner Crew challenges the Attorney General's "yes" vote
result statement on grounds similar to those advanced in
connection with the caption.  We find the challenges to be well
taken for similar reasons:  The "yes" vote result statement
focuses on "negotiation," rather than on the limit that the
proposed measure would create, and the statement fails to
identify the scope of malpractice actions to which the proposed
measure would apply.  It follows that the Attorney General's
"yes" vote result statement is insufficient, and he must modify
it in those respects.
Petitioner Garcia asserts respecting both vote result
statements that they must be modified to reflect the changes
necessitated by the imperfections that she has pointed out in the
Attorney General's caption.  The Attorney General concedes the
point, and we agree. (1)
THE "NO" VOTE RESULT STATEMENT
As noted, the Attorney General's "no" vote result
statement provides: 

"RESULT OF 'NO' VOTE: 'No' vote retains current
law allowing attorneys and their clients to negotiate
amount of fee attorney receives in action arising from
fault of healthcare provider."  

Petitioners Crew and Garcia advance criticisms of the Attorney
General's "no" vote result statement that are analogous to their
objections to the "yes" vote result statement.  We find the
objections to be similarly well taken.  The Attorney General must
make appropriate changes to this statement, as well. (2)
THE SUMMARY
As noted, the Attorney General's summary states:

"SUMMARY: Amends Constitution.  Current law places
no limit on fee agreements between injured patients,
their spouses, or their legal representatives and the
attorneys who agree to represent them, unless the
resulting fee is excessive or illegal.  This measure
limits attorney fees in actions based on fault of
healthcare provider to a maximum of $100,000 regardless
of the result achieved.  The measure applies to claims
for patient injury or death caused by a healthcare
provider or healthcare entity such as a hospital.  The
limitation applies regardless of the number of
attorneys involved in representing the patient,
patient's spouse, or patient's representative and
regardless of the number of defendants against whom
claims are made.  Restriction does not apply to
attorneys for healthcare provider or entity.  Other
provisions."

Petitioner Crew advances several criticisms of the
Attorney General's summary.  We discuss two.  Petitioner Crew
argues that the summary fails to describe adequately the scope of
the proposed measure in that it fails to indicate that its
limitation would apply not only to litigation, but also to
arbitration, mediation, and settlements.  The Attorney General
agrees with that contention, as do we.  The Attorney General
should modify the summary to reflect more accurately the scope of
the proposed measure.  
Petitioner Crew also argues that, like the caption and
the vote result statements, the summary fails to mention the
proposed measure's limitation to actions against healthcare
providers who were acting within the scope of their licenses. 
Again, we agree.
CONCLUSION
In summary, we hold that the Attorney General's
certified ballot title fails to conform substantially to the
requirements of ORS 250.035(2).  Each of the four parts of the
ballot title must be modified to some extent. (3) 
Ballot title referred to Attorney General for
modification.


1. Petitioner Crew makes an additional challenge to the
"yes" vote result statement that we do not find to be well taken,
and the discussion of which would not benefit the parties, bench,
or bar.
Return to previous location.



2. Petitioner Crew makes an additional challenge to the
"no" vote result statement that we do not find to be well taken,
and the discussion of which would not benefit the parties, bench,
or bar.
Return to previous location.



3. The changes that we require may necessitate other
changes, as well.  That will be a matter for the Attorney General
to consider on referral.
Return to previous location.


