Oklahoma Supreme Court Throws Out Medical Malpractice Affidavit Requirement

Cyrus Dugger

Oklahoma Supreme Court Throws Out Medical Malpractice Affidavit Requirement

From Northern Virginia Personal Injury Lawyer Blog:

Oklahoma Supreme Court Throws Out Medical Malpractice Affidavit RequirementVirginia medical malpractice law requires that before serving a medical malpractice lawsuit on a Virginia doctor the plaintiff or his attorney must have in his file a signed "Certification of Merit" from an expert witness that says, in effect, that the case is valid.
The Oklahoma Supreme Court has recently thrown out a similar requirement in that state on the basis that the requirement, applicable only to medical malpractice cases, violates the State's Constitution. In the Court's opinion, it noted that the Oklahoma Law, "immediately divides toward victims alleging negligence into two classes - those who pursue a cause of action in negligence generally and those who name medical professionals as defendants." This violates the Constitution's requirement that prohibit any special Law "regulating the practice or jurisdiction of or changing the rules of evidence in judicial proceedings."

The Court also found that the statute also creates an unconstitutional monetary barrier to court access. The Court noted the obvious when it said that, "the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low income plaintiffs."

The most interesting the Supreme Court of Oklahoma noted that, "Tort reform statutes aimed at curbing medical malpractice legislation generally have not led to reduced malpractice insurance rates for doctors."

Comment from Virginia Medical Malpractice Attorney, Ben Glass: It is time for Virginia to abolish its pre-suit certification requirement. There is absolutely no correlation between this requirement, which adds costs to the patient, and medical malpractice rates in Virginia. Moreover, defendants are not required to certify the merits of their defenses. (link)

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Posted at 7:09 PM, Mar 15, 2007 in
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Believe it or not. I opposed the certificate of merit requirement. Why?

The certificate of merit ended any possibility of enforcing Rule of Conduct 3.1.

http://www.law.cornell.edu/ethics/aba/current/ABA_CODE.HTM#Rule_3.1

A disciplinary counsel informed me that a certificate of merit shielded the plaintiff attorney 100%. The attorney would reply, I know nothing about medicine, my expert confirmed the merit of the claim.

Naturally, the corrupt pro-lawyer rent lawyers sitting on the Supreme Court gave the prostitute plaintiff expert absolute immunity from accountability in torts. So the victim of frivolous malpractice lawsuit had no recourse if a certificate of merit shielded the plaintiff attorney 100%.

This OK ruling is good news for anyone who believes that a jury is good enough to regulate the out of control plaintiff bar.

After many weeks, no lawyer from here, from Overlawyered, from anywhere else, none. No lawyer has agreed that a jury should regulate the careless lawyer who has injured an adverse third party in a legal malpractice claim. I thought I would get a nibble when I limited the discussion to fraudulent misrepresentation by the lawyer in a contract negotiation. Naturally Geoffrey Hazard's view includes all adverse third parties. But, I was willing to restrict the focus to contracts, just to get an answer, yes or no, instead of personal invective.

None. Why does Ralph Nader oppose hold the careless lawyer accountable for the damages he does? How can Tortdeform types exclude the lawyer from accountability when an innocent party is damaged by lawyer carelessness?

Now, I am even willing to suggest that any legal malpractice claim by an adverse third party should follow a certificate of merit from an expert in the lawyer's specialty. I am willing to allow all reports in discovery, including those of non-testifying experts who opposed the claim. Let all arguments into the public record.

If no lawyer will support this change in the law, the lawyer should have the courtesy to reveal the policy argument against it, if it is not self-dealing and hierarchical privilege.

Mine: tort claims prevent self-help.