A noxious tort “reform” law — one that made it more difficult to sue medical practitioners — was thrown out by the high court of Oklahoma yesterday. The law placed a substantial barrier in the way of claimants, forcing them to produce a doctor’s affidavit of merit to be filed in court before discovery even begins in a case. The decision is not on the court’s website as of this writing, but should be available in a day or two. From the newspaper article:
The Oklahoma Supreme Court stunned tort reform advocates on Tuesday by overturning a 2003 law credited with cutting malpractice lawsuits in the state by up to 60 percent.
In an 8-1 decision, the court ruled unconstitutional a law requiring that malpractice suits be accompanied with an expert witness affidavit attesting to the case’s merits.
The court said the requirement violated the Oklahoma Constitution’s ban on special laws because it puts medical negligence cases in a separate class from all other negligence claims.
The ruling in a 2005 Okmulgee County case also found the law creates an unconstitutional monetary barrier to the courts because of the expense of securing the affidavits.
Besides invalidating the 2003 law, the decision calls into question the ability of the Legislature to cap non-economic damages. Plaintiff attorneys argue the caps make pursuing expensive liability cases difficult to justify and thus limit access to the court system.
Such caps figure prominently in the plans of lawsuit reformers for the upcoming legislative session.
“Almost every state that has passed them has had them found unconstitutional,” said Terry West, a prominent Shawnee attorney and a two-time president of the Oklahoma Trial Lawyers Association.
The New York rule, by the way, is that a “certificate” of merit be submitted when a suit starts, that a reasonable basis exists for bringing the action. This certificate is signed by the attorney, not the doctor, thus preserving confidentiality.
[Addendum: Decision is now available. See my follow-up post at this link]
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tort “reform” law thrown out by court
cross-posted from ny personal injury attorney blog. a noxious tort “reform” law — one that made it more difficult to sue medical practitioners — was thrown out by the high court of oklahoma yesterday. the law placed a substantial …posted by Eric Turkewitz @ December 22, 2006 9:51 AM