Tuesday, January 16, 2007

Key Provision of So-Called "Medical Tort Reform" Found Unconstitutional

Every lawyer in the State of Oklahoma receives a plain newsprint magazine several times per month. The Oklahoma Bar Journal records the cases decided by the Oklahoma appellate courts as they are released. Oklahoma attorneys are required to read it from cover to cover. Frequently, it is pretty tough going. There may be ten pages on insurance subrogation or five pages that seem like forty on some obscure point of personal jurisdiction or venue. But, every once in a while you read one that is really worth the trouble … a case that makes your realize that the high court does “get it” sometimes. The last Bar Journal in 2006 contained one of these cases, ZEIER v. ZIMMER, INC. 2006 OK 98:

"1 A single dispositive issue is presented on appeal: whether the affidavit of merit1 requirement of 63 O.S. Supp. 2003 §1-1708.1E2 is constitutional. (snip)

"¶14 The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes -- those who pursue a cause of action in negligence generally and those who name medical professionals as defendants. In 1984, Oklahoma became a notice pleading state with the adoption of the Oklahoma Pleading Code.27 The pleading code does not require negligence claimants generally to have an affidavit supporting the facts alleged and the anticipated basis for the right of recovery to be filed along with the petition.28 Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff's claim and the grounds upon which it rests.29 These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition,30 while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

"¶15 Not only does 63 O.S. Supp. 2003 §1-1708.1E divide tort victims on the basis of whether the victim is pursuing a general negligence claim or whether medical malpractice damage is alleged, it also necessitates the recognition of a subset of medical malpractice claimants relying on the legislatively codified doctrine of res ipsa loquitor for medical malpractice cases.31 This is a doctrine we may not presume the Legislature intended to repeal by implication32 in passing 63 O.S. Supp. 2003 §1-1708.1E.

"¶16 The nature of a res ipsa loquitor claim often negates the necessity of expert testimony to prove the cause.33 Therefore, if 63 O.S. Supp. 2003 §1-1708.1E is inapplicable to such claims -- which may be brought against physicians and hospitals,34 a third subsection of the whole of negligence plaintiffs is severed. With the enactment of the affidavit of merit statute, courts are required to classify three sets of negligence plaintiffs: 1) general negligence plaintiffs -- not required to file an affidavit of merit; 2) medical malpractice plaintiffs to which the affidavit requirement of 63 O.S. Supp. 2003 §1-1708.1E applies; and 3) a third class comprised of medical malpractice plaintiffs who may not be subject to 63 O.S. Supp. 2003 §1-1708.1E because, generally, no professional opinion is required for recovery under res ipsa loquitor.

"¶17 A statute is a "special law" where a part of an entire class of similarly affected persons is separated for different treatment.35 Just as the discovery rule considered in Reynolds suffered from underinclusiveness,36 so does 63 O.S. Supp. 2003 §1-1708.lE -- it sets aside a subset of negligence plaintiffs for different procedural and evidentiary treatment based on the type of action they pursue.37 The professional affidavit requirement of 63 O.S. Supp. 2003 §1-1708.1E has no counterpart in the general law of tort claims. Only medical malpractice claimants are burdened with the necessity of obtaining a medical opinion to support the filing of a petition in the district court. Furthermore, only medical malpractice defendants, not negligence defendants generally, are granted what is a mandated discovery privilege before a petition for recovery will ever be heard -- although the statute prohibits the admitting of the expert's opinion at trial or its use in discovery,38 it allows the defendant to obtain a copy of the same.39 This is precisely the vice that the Oklahoma Constitution and this Court have long guarded against -- the granting of preference to some and the denial of equality to a class.40 (snip)

"¶20 The physician and the Association assert that the affidavit requirement of 63 O.S. Supp. 2003 §1-1708.1E43 creates no bar to access to judicial resolution of medical malpractice cases. The patient argues that the statutorily created requirement for the payment of professional services as a prerequisite to the filing of a petition alleging medical malpractice violates the court access guaranteed by art. 2, §6 of the Oklahoma Constitution.44 We agree with the patient.

"¶21 The Oklahoma Legislature implemented the Affordable Access to Health Care Act (Health Care Act), 63 O.S. Supp. 2003 §1-1708.1A et seq. for the purpose of implementing reasonable, comprehensive reforms designed to improve the availability of health care services while lowering the cost of medical liability insurance and ensuring that persons with meritorious injury claims receive fair and adequate compensation.45 Although statutory schemes similar to Oklahoma's Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs.46 The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price.47 They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery.48 Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs' claims based solely on procedural, rather than substantive, grounds.49

"¶22 Another unanticipated result of statutes similar to Oklahoma's scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians.50 These companies happily pay less out in tort-reform states while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or attorney for bringing frivolous lawsuits.51 (snip)

"¶25 The Okla. Const. art. 2, §6 provides:
"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." [Emphasis provided.]

"The clear language of art. 2, §6 requires that the courts must be open to all on the same terms without prejudice. The framers of the Constitution intended that all individuals, without partiality, could pursue an effective remedy designed to protect their basic and fundamental rights.78 Although we recognize that the Legislature may facilitate speedy resolution of differences, legislation cannot be used to deny the constitutional guarantee of court access -- a fundamental right. Therefore, this Court strictly scrutinizes actions which deny such opportunity.79

"¶26 Access to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities.80 Claimants may not have the fundamental right of court access withheld for nonpayment of some liability81 or conditioned on coercive collection devices.82 Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000,83 before they may proceed to have their rights adjudicated.84 In at least one instance, an affidavit of merit cost the litigant $12,000.85 A statute that so conditions one's right to litigate impermissibly denies equal protection86 and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion.87 Therefore, we determine that 63 O.S. Supp. 2003 §1-1708.1E88 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.89 (snip)

"¶31 This Court does not correct the Legislature, nor do we take upon ourselves the responsibility of legislating by judicial fiat. However, we are compelled to apply Oklahoma's Constitution.97 It has long been the policy of the Oklahoma Constitution, the statutes and this Court to open the doors of justice to every person without distinction or discrimination for redress of wrongs and reparation for injuries.98 Although art. 2, §6 does not promise a remedy for every wrong, it requires that a complainant be given access to court when a wrong suffered is recognized in the law.99

"¶32 Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claimants interjects a degree of arbitrariness which sabotages equal access to the courts.100 Section 1-1708.1E creates the potential for a medical expert to usurp the functions of the judiciary and the trier of fact. The requirement that a medical malpractice claimant obtain a professional's opinion that the cause is meritorious at a cost of between $500.00 and $5,000.00101 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.102"


All I have to say is ... they got it right.


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