Special Law Intruded on Separation of Powers
For the third time in nine years, the Oklahoma Supreme Court has overturned a law requiring an expert’s favorable opinion before a medical malpractice claim is filed in an Oklahoma court. The decision improves access to Oklahoma courts those injured by medical malpractice.
Justices called the requirement “a costly, meaningless and arbitrary barrier to court access.”
The perpetually undead affidavit requirement mandated a statement from a “qualified expert” that a professional negligence defendant had harmed the plaintiff by breaching a relevant standard of care. The court overturned the 2013 law because it applied only in professional negligence cases, and because it intruded on the court’s authority to decide what evidence is relevant to a case. John v. St. Francis Hospital 2017 OK 81
The Medical Malpractice Case
The lawsuit involves a patient who had a series of decompressive laminectomies performed at Saint Francis Hospital in October 2012. After the surgery, the patient was partially paralyzed, suffered constant pain and was hospitalized for another four months.
Alleging negligence, gross negligence, and medical malpractice, the patient in 2016 sued the physician and the hospital alleging medical malpractice. The lawsuit sought actual and punitive damages.
At that time, Oklahoma law required that plaintiffs in a medical malpractice case to file an affidavit in accordance with Okla. Stat. tit. 12, § 19.1. The affidavit had to state that the expert:
- had reviewed the facts of the claim,
- had a determined the defendants’ acts or omissions constituted negligence, and
- had concluded that the claim was meritorious and based on good cause.
Alternatively, the statute provided that a plaintiff could request an indigency exception. The plaintiff did neither.
The defendants asked a district court to dismiss the plaintiff’s lawsuit based upon the lack of compliance with the new affidavit requirement. The district court declined to dismiss the case, ruling that the law unconstitutionally imposes a substantial and impermissible impediment to court access.
When the doctor and hospital filed an interlocutory appeal, the Oklahoma Supreme Court agreed to hear the matter.
The Oklahoma Supreme Court’s Analysis
Noting that Okla. Stat. tit. 12, § 19.1 is the legislature’s third attempt to impose an extra burden on plaintiffs who allege professional malpractice, the Supreme Court declared that the legislature may not constitutionally pass a special law regulating judicial proceedings.
By the Court’s analysis, the statute creates a new class of plaintiffs who must not only get an expert review of their case prior to filing, but also pay for the cost of the expert review before they can access the courts.
The Supreme Court noted that every person has a fundamental constitutional right to seek redress from an Oklahoma Court of law. Courts are to be made open to every person without denial, delay or prejudice. The affidavit requirement creates a procedural hurdle that those particular plaintiffs must cross before they can gain access to the courts.
In fact, cases that did not comply with the thrice-enacted and twice-resurrected affidavit before they were filed would be statutorily dismissed. As such, at a minimum, the statute creates a delay for a plaintiff seeking redress. At maximum, it denies a plaintiff the right to redress absent the costs of obtaining an expert review.
Writing the majority opinion in the 7-1 ruling, Justice Tom Colbert recalled that each time the legislature has adopted the affidavit as a barrier to court access, the Supreme Court has held it to be unconstitutional. Such is the case here as well. The Court recognized the legislature’s desire to weed out unmeritorious negligence claims, but it may not do so unconstitutionally, Justices explained. (Vice Chief Justice Noma Gurich dissented and Justice Patrick Wyrick recused.)
Oklahoma Consitution Prohibits Special Laws
The Supreme Court was not persuaded that the legislature enjoyed the right to pass this statute as a special law. While the legislature may pass a special law when a general law cannot be made applicable, it may not pass a special law which regulates the jurisdiction of the courts. Nor may legislators impose a special law that limits civil or criminal actions.
Under Oklahoma law, a special law includes any law that singles out less than an entire class of “similarly situated persons or things for different treatment.” The court found lawmakers first negligence affidavit requirement was a special law that applied to only to medical negligence plaintiffs and did not apply to the general class of negligence plaintiffs. Zeier v. Zimmer, 2006 OK 98
The second time around, lawmakers carved out a subclass of “new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors.” Wall v. Marouk, 2013 OK 36
In lawmakers’ third attempt to impose an affidavit requirement, the Court found an expert negligence class that lawmakers had differentiated from the general negligence class.
The Supreme Court rejected the defendants’ argument that the law embraces all actions where expert testimony is required to establish a breach of the standard of care and causation. The decision of whether expert witness testimony is required in a given case remains that of the trial court. Nor does the statute define the type of “qualified expert” to be used. A potential plaintiff must determine if the statute applies to their case, and then must also determine what sort of expert is required to satisfy the “qualified expert” requirement.
Finally, the Supreme Court found that the statute improperly impinged on judicial authority by limiting admissibility of evidence in cases that require an expert. The now-stricken law expressly prohibited introduction or inquiry into the pre-petition expert opinion. The limitation went beyond the constitutional authority afforded to the legislature under long settled separation of powers doctrines.
“On one hand, the statute mandates a plaintiff to pay for pre-petition expert review and opinion before commencing an action; yet, on the other hand, renders that same evidence useless,” the Court observed.
Free Consultation: Tulsa Personal Injury Attorney
Once again, our courts have sided with the rights of the individual by removing a legislatively imposed barrier to court access. All too often, measures touted as tort reform do little more than limit access to justice, and tilt the tables in favor of defendants.
If you believe you have been harmed by professional negligence or medical malpractice in Oklahoma, it is important that you retain council that will fight for your rights in court. Tulsa personal injury attorneys at Wirth Law Office offer free consultations to help you determine whether you are likely to recover compensation for your claim. In most cases, when we take on your personal injury case you pay nothing until we win a settlement.
For a free consultation about your personal injury, medical malpractice or professional negligence matter, call the Wirth Law Office at (918) 879-1681 or submit the question form at the top right of this page.