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Johannesen v. Salem Hospital12/26/2003
alth practitioners. Moreover, the legislative history, which both parties discuss in their briefs to this court, supports the proposition that at least some members of the committee that drafted the bill that became ORS 18.550(2) expected that they were changing the law. (As plaintiff points out, ORS 18.550 was part of a larger "tort reform" bill that included a "cap" on non-economic damages.)
It remains, however, that, in amending the statute, the legislature used a legal term -- "malice" --without defining that term and, according to the legislative history, with an understanding of the way that the Oregon courts previously had used that term. Absent a separate definition of the term, the legislature must be deemed to have meant to use the term in that traditional, well-understood sense. That being the case, the lead opinion's conclusion on this issue is inescapable.
Gillette, J., joins in this concurring opinion.
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