When a child was abused or mistreated while in the custody of Oregon's Department of Human Services (DHS), they may consider filing a lawsuit to seek compensation for damages caused by the agency's actions or negligence. However, before proceeding with a lawsuit against the DHS, it's crucial to understand the importance of Oregon's Tort Claim Notices. Although there are many factors to consider before filing a lawsuit against DHS, this blog post aims to shed light on the significance of these notices and the essential steps involved in filing a claim against the Department of Human Services.

Understanding the Tort Claim Notice

Oregon's Tort Claims Act (ORS 30.275 to 30.299) governs the process by which individuals can file claims against the state, including the DHS, for alleged wrongdoing or harm caused by its employees or agents. This often includes when a child in DHS custody is physically or mentally abused, sexually abused, or neglected. However, there are different rules that apply to a person injured by the negligence or wrongdoing of DHS while in DHS’s legal custody and those that are not in DHS’s legal custody. There are also different rules that apply to a Tort Claim Notice than the Statute of Limitations under the Oregon Tort Claims Act.

Is a Tort Claim Notice Required?

Oregon Law (ORS 30.275) notes that a Tort Claim Notice is NOT required if ALL of the following are true:

1) The claimant was under the age of 18 years when the acts or omissions giving rise to a claim occurred;

2) The claim is against the Department of Human Services or the Oregon Youth Authority; and

3) The claimant was in the custody of the Department of Human Services pursuant to an order of a juvenile court under ORS 419B.150 (When protective custody authorized), 419B.185 (Evidentiary hearing), 419B.337 (Commitment to custody of Department of Human Services) or 419B.527 (Disposition of ward after termination), or was in the custody of the Oregon Youth Authority under the provisions of ORS 419C.478 (Commitment to Oregon Youth Authority or Department of Human Services), 420.011 (Admissions to youth correction facilities) or 420A.040 (Provision of juvenile corrections programs and services to tribal adjudicated youth), when the acts or omissions giving rise to a claim occurred.

However, if the injured person was not in DHS’s legal custody when the abuse occurred then submission of a Tort Claim Notice is typically required. A Tort Claim Notice is a formal notification to the DHS that the claimant intends to pursue legal action. Even if the child was in DHS’s legal custody it is a best practice to file a Tort Claim Notice to preserve the child or claimant’s rights.

The Tort Claim Notice serves as a prerequisite and must be filed within 180 days of the incident giving rise to the claim or 1 year if it is a wrongful death claim. 180 days is NOT 6 months. This notice is an opportunity for the DHS to respond, investigate, and potentially resolve the claim without going through the formal legal process.

Key Elements of the Tort Claim Notice

When submitting a Tort Claim Notice against the Department of Human Services, it is essential to include certain key elements to ensure its validity and compliance with Oregon law. These elements typically include:

Name and Address: Clearly state the claimant's name, address, and contact information for future correspondence.
Incident Description: Provide a detailed account of the incident, including the date, time, and location. Explain how the DHS's actions or negligence caused harm or damage.
Nature of the Claim: Clearly state the nature of the claim, whether it involves personal injury, property damage, or any other harm caused by the DHS's actions.
Monetary Damages: Specify the amount of compensation sought for the damages incurred, including medical expenses, property repairs, lost wages, and any other relevant costs.
Supporting Documents: Attach any supporting documents, such as medical records, police reports, photographs, or witness statements, that substantiate the claim.

Submitting the Tort Claim Notice

Once the Tort Claim Notice is prepared, it must be submitted to specific people named in the Tort Claim Statute in writing. The notice MUST be delivered to the Director of the Oregon Department of Administrative Services. It is also good practice to send it to the Oregon Attorney General and the Director of the Department of Human Services. If there are other local or municipal agencies involved then you must review ORS 30.275 (5) and send the individuals outlined in the statute. , Sending the notice via certified mail or a reputable courier service ensures a verifiable delivery date, which is essential in meeting the 180-day deadline or 1-year deadline for wrongful death claims.

The DHS will then hopefully review the claim and conduct its investigation to determine liability. During this period, it may be beneficial for the claimant to consult an experienced attorney who regularly litigates cases against DHS, such as Jeremiah Ross, to provide guidance and ensure proper adherence to the legal requirements.

DHS Response and Potential Settlement

Following the receipt of the Tort Claim Notice, Oregon’s DHS through its Department of Administrative Services (DAS) may respond. The response may include:

Acceptance: The DHS accepts liability and agrees to a settlement, which may involve compensation for the damages claimed.
Rejection: The DHS rejects the claim, denying liability for the alleged harm or damage. In this case, the claimant can proceed with filing a lawsuit against the DHS.

Filing a Lawsuit

If the DHS or DAS and the injured person or their representative cannot reach a settlement the claimant can file a lawsuit against the DHS in an appropriate court. It is crucial to adhere to Oregon's statute of limitations under Oregon’s Tort Claims Act.

The Bottom Line

Navigating Oregon's Tort Claim Notices when suing the Department of Human Services is a critical and COMPLICATED step in seeking compensation for damages caused by the agency's actions or negligence. By adhering to the proper procedures outlined in the Oregon Tort Claims Act, claimants can increase their chances of being able to file suit against the Department of Human Services. Failing to adhere to the procedural rules or Statute of Limitations may result in the case getting dismissed and no redress for the injured person.

Consulting with a knowledgeable attorney, such as Jeremiah Ross and Ross Law, can be instrumental in this process, ensuring that all legal requirements are met and the claimant's rights are protected. Please remember that laws and rules are constantly changing. DO NOT RELY SOLELY on this post when determining if a Tort Claim Notice is necessary. Please contact Oregon Attorney Jeremiah Ross at 503.224.1658 to discuss the various Tort Claims issues and statute of limitations issues that may arise when filing suit against Oregon’s DHS.