In its decision dated October 24, 2017, the Supreme Court of the State of Oklahoma (“Oklahoma Supreme Court”) held that “the thrice incarnated affidavit of merit requirement found in Okla. Stat. tit. 12, § 19.1 (Supp. 2013)” with regard to Oklahoma medical malpractice cases is unconstitutional because it “is an impermissible barrier to court access and an unconstitutional special law.”
Section 19.1 (“Professional Negligence Action – Expert Opinion Affidavit Requirements – Exemption”)
Section 19.1 prescribes certain filing requirements and procedures governing all civil negligence actions in which expert testimony is required to establish a departure from the applicable standard of care and resulting harm (i.e., including Oklahoma medical malpractice cases). Plaintiffs in such cases are required to attach to the petition an affidavit attesting, at a minimum, that the plaintiff has consulted with and procured a written report from a qualified expert that: identifies the defendant(s) against whom the claim(s) are brought; states that the defendant(s) breached the standard of care, that such breach constitutes negligence, that the plaintiff’s claim has merit and is based on good cause. The statute also requires the written report of the qualified expert to identify and explain why the defendant(s) acts or omissions constitute negligence. The penalty for a plaintiff’s failure to file the affidavit within 90 days after the petition is filed, subject to a good cause extension not to exceed 60 additional days, is mandatory dismissal without prejudice.
The Oklahoma Supreme Court stated that it is well-settled that every person of Oklahoma is afforded the fundamental and constitutional right to access the Oklahoma courts of justice, and that it is established beyond doubt the guarantee that “[t]he 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.” Okla. Const. art. 2, § 6. Said constitutional provision guarantees: (1) access to the courts; (2) right-to-a-remedy for every wrong and every injury to person, property, or reputation; and (3) prohibition on the sale, denial, delay or prejudice of justice.
The Oklahoma Supreme Court stated that the newly enacted section 19.1 establishes exclusive procedures that are triggered only when a plaintiff’s civil negligence action requires an expert to establish a breach of the standard of care and negligence. In such circumstances, a plaintiff must engage the services of a qualified expert, procure a written opinion substantiating the merits of the plaintiff’s claim, and then the plaintiff must attest to the same in an affidavit. The Oklahoma Supreme Court stated that at a minimum, section 19.1 operates to delay, and in some instances denies, adjudication of a plaintiff’s claims for plaintiff’s failure to satisfy the section 19.1 procedural hurdles. Thus, a plaintiff’s repeated attempts to gain court access, absent the costs for pre-petition expert review and requisite affidavit, is nothing more than a “sisyphean exercise,” and “section 19.1 is a costly, meaningless and arbitrary barrier to court access.”
The Oklahoma Supreme Court held: “To be clear: whether in the context of a medical liability, professional liability, or- -as in this case- -expert liability, court access cannot be conditioned upon a plaintiff’s ability or inability to pay ‘some liability or conditioned coercive collection devices’ … Simply stated, section 19.1 is constitutionally infirm.”
Oklahoma Constitutional Prohibition Against “Special Laws”
The Oklahoma Supreme Court applies a three-prong test to determine whether a statute is an impermissible special law under Sections 46 and 59: whether the challenged provision is (1) a special or general law; (2) if the statute is a special law, is there an applicable general law; and (3) if a general law is not applicable, is the statute a permissible special law?
The Oklahoma Supreme Court stated that the line of demarcation between special and general is clearly drawn when a statute singles out less than an entire class for different treatment, making it a special law. A general law, on the other hand, is a statute that relates to all persons or things in a class.
The Oklahoma Supreme Court stated the Section 19.1’s class defining language- -“[i]n any civil action for negligence wherein the plaintiff shall be required to present the testimony of an expert witness to establish breach of the relevant standard of care and that such breach of duty resulted in harm”- -operates exclusively upon actions in which expert testimony is required to substantiate an element of the plaintiff’s claim. By its text, section 19.1 imposes a heightened burden on an expert negligence class that is clearly not applicable to the general negligence class. If the Oklalhoma Legislature intended section 19.1 to apply to all expert negligence actions, then its failure to say so renders the operative class vague. While victims of an expert negligence action must pay for extremely expensive pre-petition expert review and evidentiary materials, general negligence victims do not.
The Oklahoma Supreme Court held that Section 19.1 is an unconstitutional special law regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts.
Furthermore, the Oklahoma Supreme Court stated that functionally, section 19.1 divests the district courts of the power to adjudicate civil negligence actions that require an expert to substantiate the plaintiff’s claim unless and until the plaintiff satisfies the conditions precedent. Legislatively removing the discretionary component in the adjudicative process is a usurpation of the courts freedom that is essential to the judiciary’s independence from the other two branches, which it cannot do.
The Oklahoma Supreme Court concluded: “Section 19.1, found at Title 12 of the Oklahoma Statutes, is an impermissible barrier on a plaintiff’s guaranteed right to court access and an unconstitutional special law.”
Source John v. Saint Francis Hospital, 2017 OK 81
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