Oklahoma’s Medical Malpractice ‘Affidavit of Merit’ Law Ruled Unconstitutional

By | November 6, 2017

In an unpublished opinion decided Oct. 24, the Oklahoma Supreme Court ruled that a state law aimed at curtailing the filing of medical malpractice lawsuits is unconstitutional.

The Court came to that conclusion in reviewing John v. Saint Francis Hospital, in which a patient sued a surgeon (along with a hospital and a neurological surgery group) who had performed decompressive laminectomies on the patient. After the surgery the patient “allegedly became partially paralyzed, suffered constant pain, was hospitalized for four months and submitted to additional medical treatment,” according to the Court’s written opinion.

The surgeon filed a motion to dismiss because the patient failed to attach an affidavit of merit as required by the statute at issue: Section 19.1, entitled Professional Negligence Action – Expert Opinion Affidavit Requirements – Exemption, codified in Title 12, Chapter 1B governing Professional Negligence.

According to the Court, section 19.1 requires that upon the filing of a medical negligence action, the patient must file an affidavit showing that the patient “(1) consulted and reviewed the facts of the claim with a qualified expert, (2) had obtained a written opinion from a qualified expert which included a determination that a reasonable interpretation of the facts support a finding that defendants’ actions or omissions constituted negligence and (3) had concluded, on the basis of the review and consultation with the qualified expert, that the claim was meritorious and based on good cause.”

The affidavit of merit requirement is one that the Court has twice considered in previous cases — Zeier v. Zimmer in 2006 and Wall v. Marouk in 2013. The requirement was ruled unconstitutional in both.

The Court recognized in the current opinion “that section 19.1 is the Legislature’s third attempt to mandate an affidavit requirement as an indispensable step in the pleading process for certain civil actions. Pursuant to statute, adjudication cannot occur if the plaintiff fails to attach the requisite affidavit to the petition.”

In the previous cases, the Court found the affidavit requirement “unconstitutionally imposes a substantial and impermissible impediment to access to the courts.”

Similarly, in John v. Saint Francis Hospital, the Court concluded that the Legislature’s third attempt at preventing frivolous medical malpractice lawsuits is an unconstitutional special law that places “an impermissible barrier on a plaintiff’s guaranteed right to court access.”

The Court further wrote that the issue had been “discussed and ultimately decided in Zeier and Wall. Section 19.1 creates the same court access hurdles this Court has repeatedly declared unconstitutional. The obvious purpose of the affidavit requirement reflects the Legislature’s desire to deter and weed out non-meritorious negligence claims. … But, in spite of its successive enactments, the Legislature has failed to remedy the inequalities this Court continues to identify as problematic in its prior decisions.”

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Insurance Journal West November 6, 2017
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