Tort reform issue ruled unconstitutional
Supreme Court: Expert testimony not required after decision
State justices say curbs on suing doctors burdens plaintiffs in malpractice suits.

By John Greiner

Published: December 20, 2006

The Oklahoma Supreme Court made it easier Tuesday for Oklahomans to file medical malpractice lawsuits, striking down a legal provision it said sabotages equal access to the courts.

The court ruled as unconstitutional a provision of a 2003 tort reform law that required someone suing a medical professional to get an expert in the field, usually a doctor, to say in an affidavit that the lawsuit had merit.

Without the affidavit, the lawsuit could not be filed.

With eight of nine justices concurring, the court said the provision was a special law that unconstitutionally applies only to people filing medical negligence claims. People filing any other negligence claim don't have to comply with the provision, it said.

The law also creates an unconstitutional monetary barrier to access to courts because a person filing the malpractice lawsuit must spend between $500 and $5,000 for an expert opinion on the lawsuit's merit, the court said.

It also said the provision created a windfall for insurance companies that benefit from a decreased number of cases to defend but aren't required to implement post-tort reform rates that decrease medical malpractice insurance for 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 court's opinion stated.

The ruling grew out of a lawsuit filed in Okmulgee County by Monica Belinda Zeier against Zimmer Inc., and Dr. Theron S. Nichols over knee replacement surgery.

The trial judge dismissed the case because Zeier didn't have an affidavit from an expert that said the case had merit.

"We are extremely disappointed. This affidavit served only to stop frivolous lawsuits,” said Dr. Frank Phelps, interim director of the Oklahoma State Medical Association.

The ruling will result in less access to care and medical costs will go up, he predicted.

John B. Nicks, a Tulsa attorney representing Zeier, said the ruling is "pretty significant” to people who believe they may have been a victim of medical negligence.

Thomas Layon, also an attorney in the case, said the ruling "recognized the right of every citizen to have access to courts without having to resort to this kind of expensive, prequalifying step. That's what it's all about: access to courts.”

Jeffrey A. Glendening, attorney for Dr. Theron, said the decision will have a far reaching impact on tort reform.

"The statute that was found unconstitutional certainly had its intended effect, which was to weed out frivolous and silly lawsuits against physicians and hospitals,” he said.

Glendening said many of these kinds of lawsuits have been filed after a review of their merit by an expert.

"Now plaintiffs' lawyers can revert to the days of old and file petitions in search of lawsuits,” he said.

So far this year, 377 doctors have been sued in state court, said Gordon Amini, general counsel for Physicians Liability Insurance Co., which writes close to 70 percent of the malpractice insurance for Oklahoma doctors.

The insurance company is a wholly owned subsidiary of the Oklahoma State Medical Association, he said.

Amini declined to comment on specifics of the lawsuit, including comments about the insurance industry because he had not read the opinion yet.