On June 4, 2013, the Supreme Court of the State of Oklahoma (“Oklahoma Supreme Court”) held that the Oklahoma statutory requirement that an affidavit of merit be filed in actions for professional negligence (medical malpractice) is a “special law” that regulates the practice of law that violates the Oklahoma Constitution’s prohibition regarding special laws (Okla. Const. art. 5, Section 46) and is also an unconstitutional financial burden on access to the courts, in violation of the Oklahoma Constitution (Okla. Const. art. 2, Section 6).
Oklahoma’s Prohibition Against “Special Laws”
Title 12 O.S. 2011 Section 19 provides that in civil actions for professional negligence (medical malpractice), the plaintiff must attach an affidavit from an expert, thereby creating two classes of litigants – those who file civil actions for professional negligence and those who file civil actions for negligence generally. The Oklahoma Constitution specifically prohibits the Oklahoma Legislature from enacting special laws dealing with twenty-eight subject areas, including special laws “Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts…”
A special law confers some right or imposes some duty on some but not all of the class of those who stand upon the same footing and same relation to the subject law. A special law does not embrace all the classes that it should naturally embrace and creates preference and establishes inequality.
The Oklahoma Supreme Court held that Section 19 “creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors. In doing so, it places an out of the ordinary enhanced burden of these subgroups to access the courts by requiring victims of professional misconduct to obtain expert review in the form of an affidavit of merit prior to proceeding, and it requires the victims of professional misconduct to pay the cost of expert review. It does establish an impermissible special law regulating the practice of judicial proceedings before the courts.”
Unconstitutional Burden On Access To The Courts
The Oklahoma Constitution states in article 2, Section 6, “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.”
The Oklahoma Supreme Court noted that “while reasonable fees to defray the cost of litigation are not a violation of the right of citizens to access the courts [such as the $349.00 jury fee imposed by Oklahoma statute, which the Oklahoma Supreme Court previously found to be “very close to crossing the line of being an unconstitutional burden on accessing the courts”], the costs associated with obtaining affidavits of merit go beyond the bounds of reasonableness [the Oklahoma Supreme Court noted that the cost of obtaining a professional’s opinion to support the affidavit of merit requirement could range between $500.00 and $5,000.00]” and as such “they create an impermissible hurdle unconstitutionally restricting the right of citizens to access the courts in violation of art. 2, Section 6 of the Oklahoma Constitution.”
Source Timothy Wall v. John S. Marouk, D.O., No. 109,005.
If you, a family member, a friend, or someone you know may have suffered serious injuries or other harms as a result of medical malpractice in Oklahoma or in another U.S. state, you should promptly seek the advice of an Oklahoma medical malpractice attorney or a medical malpractice attorney in your state who may be willing to investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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