New York Personal Injury Law Blog » Medical Malpractice, tort reform


December 22nd, 2006

Oklahoma Tort "Reform" Reversal Decision Now Available

Yesterday I posted regarding the Oklahoma Supreme Court declaring a tort “reform” law unconstitutional with respect to the additional burdens placed on medical malpractice claimants. The court’s decision is now available in its unofficial form. It is an important decision for all states since similar attempts to place hurdles in front of claimants takes place on a daily basis around the nation.

The court decision was based on the need for an affidavit from a doctor when bringing a medical malpractice suit. The statute was a general law (as opposed to a special one under OK law), and therefore all claimants had to be treated equally. But, the court found:

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. …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. 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. These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition, 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.

What’s more, the court found, since some medical malpractice claimants can proceed without an affidavit under the doctrine of res ipsa loquitor (the thing speaks for itself – like a retained sponge after surgery), there were actually now three different classes of claimants.

Since OK law mandates uniformity of procedure, all citizens of the state must have equal access to its legal institutions for teh application of the general ordinary forensic process. And this did not happen with the procedures employed.

A second ground for tossing the law was that it created an unconstitutional monetary barrier to the access to courts guaranteed by the Oklahoma Constitution. The court found that:

[T]he additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. 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. They also prevent meritorious medical malpractice actions from being filed…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.

One comical note in the opinion – though not apparently intended that way — was this part:

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. 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.

The funny part is the assertion that the dramatic drop-off in claims, and the insurance company profits that went with it, was somehow “unanticipated.” The court’s rip at “tort reformers” coming from an 8-1 majority in a very red state, is stunning.

The court was emphatic about the unfair burden that was placed on those of modest means:

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. Claimants may not have the fundamental right of court access withheld for nonpayment of some liability or conditioned on coercive collection devices. 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. In at least one instance, an affidavit of merit cost the litigant $12,000. A statute that so conditions one’s right to litigate impermissibly denies equal protection and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion. Therefore, we determine that 63 O.S. Supp. 2003 §1-1708.1E creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, §6 of the Oklahoma Constitution.

An interesting decision, of which other courts around the nation will surely take notice when efforts to close the courthouse door take place under the pretext of “reform” in their own jurisdictions.

Links to this post:

Edwards for Tort Reform?
Yesterday, Presidential Candidate John Edwards spoke at a health care forum organized by Families USA and the Federation of American Hospitals. He offered a comprehensive strategy for combating HIV/AIDS, including (according to this

posted by Kia Franklin @ September 25, 2007 3:50 PM

edwards for tort reform?
yesterday, presidential candidate john edwards spoke at a health care forum organized by families usa and the federation of american hospitals. he offered a comprehensive strategy for combating hiv/aids, including (according to this

posted by Kia Franklin @ September 25, 2007 1:10 PM

okla. high court kills certificate-of-merit law
as we’ve had occasion to note a number of times in the past (eg here, here, and here) one of the weaker (though still useful) procedural reforms in medical malpractice litigation is a requirement that a plaintiff’s lawyer obtain a

posted by Walter Olson @ January 22, 2007 12:16 AM

oklahoma tort “reform” reversal decision now available
cross-posted from new york personal injury law blog. yesterday i posted regarding the oklahoma supreme court declaring a tort “reform” law unconstitutional with respect to the additional burdens placed on medical malpractice claimants.
posted by Eric Turkewitz @ January 03, 2007 9:58 AM

One thought on “Oklahoma Tort "Reform" Reversal Decision Now Available

  1. Oops they did it again – The Oklahoma House of Representatives just passed tort reform limited non-economic damages to $300,000, limiting actual damages, requiring plaintiffs to file expert report with a petition. It looks like it came out of the Senate (proposed by Democratic Whip Susan Paddack of Oklahoma City) on 2/17/07.