Oklahoma justices reject affidavit requirement in med-mal cases.

In an 8-1 decision, the Oklahoma Supreme Court has ruled that a 2003 law requiring medical malpractice plaintiffs to file expert witness affidavits of merit in support of their claims violated the state's constitution. (Zeier v. Zimmer, Inc., 2006 WL 3717904 (Okla. Dec. 19, 2006).)

John Nicks of Tulsa, who represented plaintiff Monica Zeier, said the decision will allow critical discovery work to proceed in cases that would otherwise have been blocked at the starting gate.

"Sometimes you find out what happened only with discovery, but if the record reflects only that the patient had a bad result and you have to put that in front of a doctor for purposes of providing an affidavit, that doctor may not be able to tell you anything," Nicks said. "In this case, the treating doctor admitted he departed from the standard of care, but even that wasn't sufficient, because there was no affidavit."

Zeier underwent knee replacement surgery in 2004. Afterward, she had difficulty walking. She sued the doctor who performed the surgery and the manufacturer of the knee replacement device, alleging that the doctor had used mismatched parts in the procedure and that the device itself was defective. She brought claims for medical negligence, products liability, and breach of warranty.

The doctor filed a motion to dismiss the medical negligence claim after Zeier failed to attach to her petition an affidavit of merit from an expert, who was to support her claim that the doctor's treatment was negligent and explain why. The state's Affordable Access to Health Care Act required such an affidavit only in medical negligence cases. The trial court granted the motion.

On appeal, Zeier argued that the affidavit requirement violated the "special law" provision of the state's constitution, which prohibits any special law "regulating the practice or jurisdiction of, or changing the rules of evidence in, judicial proceedings or inquiry before the courts...." Zeier also contended that the statute violated the right of access to courts guaranteed by the Fourteenth Amendment and the Oklahoma constitution.

In agreeing with Zeier that the affidavit requirement violated the special-law provision, Chief Justice Joseph Watt noted that it "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 court also determined that the statute "creates an unconstitutional monetary barrier" to court access. Although such statutes "do help screen out meritless suits," wrote Watt, "the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs.... 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."

Watt went on to note that tort "reform" statutes aimed at curbing medical malpractice litigation generally have not led to reduced malpractice insurance rates for doctors.

"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," Watt wrote. "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."

Nicks called that recognition by the court "unique."

It "undercuts the primary justification given for the passage of such provisions and acknowledges that these protections are the exercise of raw political power by those who have more money than the average victim," he said.