The Oklahoma legislature, following the lead of a number of other states, attempted to limit unfounded claims for medical malpractice by mandating that all med mal suits be accompanied by an expert’s affidavit stating the expert’s opinion that the claim possesses merit. The Oklahoma Supreme Court has now declared that requirement to be unconstitutional. (See Business Insurance, "Okla. Expert Opinion Law Rules Unconstitutional", Dec. 20).
The Court states two grounds for its conclusion. First, the Oklahoma Constitution bars the legislature from adopting "special laws" in which different members of the same class are treated differently. The Court concludes that the affidavit of merit requirement distinguishes medical negligence claims from all other negligence claims, in violation of the "special law" prohibition. Second, the Court concludes that requiring potential med mal plaintiffs to bear the expense of obtaining a medical expert’s pre-litigation opinion — the Court estimates it to be between $500 to $5,000 — creates an economic bar at the courthouse door that impedes less wealthy claimants’ access to redress, thus depriving them of due process of law.
The court’s opinion in Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., Oklahoma Supreme Court, No. 102472 (Decided Dec. 19, 2006) — which is not quite final and official as of this writing — is accessible through the Court’s website, here.
One Comment
I support this certificate of merit, for the purpose of accuracy of the medmal claim.
Its elimination is not all bad.
1) The certificate completely immunized the lawyer from any accusation of filing a frivolous claim. With it, the lawyer could use the defense of, “The medical expert said the claim had merit. I am not a medical expert.”
2) The justifications in this decision can be used to take down the privity obstacle to legal malpractice claims by adverse third parties, and possibly the “trial within a trial” practice in legal malpractice claims by clients of lawyer who have privity with the lawyer.
This certificate should have increased the rate of cases ending in settlement or verdicts in favor of the plaintiff, reducing wasted litigation costs for the plaintiff bar. With a 70% rate of verdicts for the defendant in medmal, one would think the plaintiff bar would welcome such a law.
Their opposition implies some claims are filed to extort money in the form of nuisance suits.
As a substitute, the highly successful plaintiff attorney will always have the support of an expert prior to filing a claim. If the plaintiff attorney could be sued by the defendant for legal malpractice, the claim could be the absence of prior review deviates from professional standards of due care.