Losing the fight against frivolous claims

June 15, 2007

A state Supreme Court rules against forcing malpractice plaintiffs to get an expert opinion before filing suit.

Doctors view the flood of "frivolous" malpractice claims as a prime target in their running battle for tort reform. To stop such claims, medical societies and liability insurers have lobbied aggressively for laws requiring malpractice plaintiffs to submit affidavits or "certificates of merit" from a medical expert to support any negligence claim.

In response, many states have passed tort reforms including such requirements. But in a sweeping decision last December, the Oklahoma Supreme Court ruled that the requirement is unconstitutional. For doctors, that decision represents a major setback.

The case began in August 2004 when Therron Nichols, an orthopedic surgeon in Okmulgee, OK, replaced Monica Zeier's knee. About a year later, dissatisfied with the result, she sued Nichols, claiming he'd inserted the wrong replacement parts. (She also sued the company that made the device.) However, she failed to submit an affidavit from a medical expert supporting her claim, as required by the state's tort reform law, passed in 2003. For that reason, the trial judge dismissed the case in August 2005.

A special law comes under scrutiny

The high court first considered whether the affidavit requirement violates an Oklahoma statute prohibiting "special laws" that establish rules of evidence for a particular group of litigants. Under the state's requirement, the judges noted, "only medical malpractice claimants are burdened with the necessity of obtaining a medical opinion" to support a negligence claim, and only medical malpractice defendants are granted such legal protection before a plaintiff's claim can be heard in court.

That special privilege, the judges ruled, is precisely what the state's ban against special laws is designed to prevent: "the granting of preference to some and the denial of equality to a class." Saddling medical malpractice plaintiffs with special requirements that don't apply to other negligence claimants, the judges stated, limits their right to equal judicial treatment. On that basis, the high court declared the affidavit requirement unconstitutional.

The judges then took up Zeier's other claim: that the affidavit requirement violates her right to equal access to the courts. They cited studies showing that the requirement forces injured patients to engage in extensive and often costly efforts to obtain the necessary medical records, and then to pay from $500 to $5,000 for an expert opinion.

Because of those up-front expenses, the judges noted, the requirement also produces "a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs." It also means that legitimate claims have been dismissed solely on "procedural, rather than substantive grounds."

For those reasons, the judges concluded that the requirement "closes the courthouse doors to those financially incapable of obtaining a pre-petition medical opinion." Further, they said that Oklahoma's requirement law creates "an unconstitutional monetary barrier to the access to courts." As a result, the Zeier case will now go back to the lower court for trial.

Defendants in other states could feel the legal fallout

For Oklahoma's doctors, the Zeier decision represents a real kick in the teeth. Orthopedist Jack Beller, former president of the Oklahoma State Medical Association, describes the affidavit requirement as the centerpiece of the tort reform act passed in 2003, and he argues that it brought a sharp drop in the number of malpractice claims the following year. Now he fears that the Zeier ruling will open the floodgates. Indeed, Physicians Liability Insurance Company, the state's biggest malpractice carrier, reports a slight increase in claims in the first quarter of this year, which the company attributes to the Zeier decision.

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