I recently came across an opinion from the Oklahoma Supreme Court released onto its web site on December 19, 2006 but not yet formally published which presents an interesting analysis of tort reform in the state of Oklahoma. The Oklahoma Supreme Court in an almost unanimous decision struck down a tort reform initiative requiring an expert affidavit of merit to accompany every new medical malpractice lawsuit. The court reasoned that requiring plaintiffs to obtain an affidavit from a professional expert confirming that a medical malpractice claim has merit creates an artificial burden and prevents access to the courts. According to the Oklahoma Supreme Court:
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. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery. 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.
Interestingly, the Oklahoma Supreme Court reasoned further:
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 Supreme Court cautions people reviewing this case on its web site:
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
I do not practice law in Oklahoma nor do I understand what the effects of this legislation have been other than what has been described in the Supreme Court decision. Even in light of these cautioning remarks, this case presents an interesting and realistic assessment about the adverse consequences of tort reform initiatives. Arizona already requires an affidavit of merit for claims against professionals and perhaps this requirement has also created artificial limitations on access to the courts as a result. One commentator at a site known as the Greedy Trial Lawyer first remarked on the Oklahoma Supreme Court decision. I do not share the author’s opinions inferred by the name of his site. However, kudos for pointing out the decision from the Oklahoma Supreme Court and for highlighting the importance of equal access to our court system.