Oklahoma Court Rules that Professional Certificate Requirement is Unconstitutional

Published on Jun 23, 2013 at 2:38 pm in General Blogs.

The Supreme Court of Oklahoma has struck down the requirement that an affidavit of merit must be filed in legal actions for professional negligence.

Under Title 12 O.S. 2011 Section 19, the plaintiff must attach an expert’s affidavit in civil actions for professional negligence. The Sooner state’s top court held in the June 4 ruling that the statute is a special law that violates the Oklahoma constitution and that it also creates an unconstitutional financial burden on access to the courts in violation of the state’s constitution.

“It is undisputed that during the course of litigation the plaintiffs will be required to prove their case, as any other cause requires. They just do not have to provide expert testimony before it can be filed,” the court said in Timothy Wall v. John S. Marouk, D.O.

The ruling stemmed from a medical malpractice case. Timothy Wall filed a petition for medical negligence against Dr. John Marouk in August 2010. Wall alleged that Marouk negligently cut the median nerve in his right arm during carpal tunnel surgery, resulting in his losing feeling in the fingers in his right hand. Wall did not attach an affidavit of merit as then apparently required by Oklahoma law. As a result, the doctor filed a motion to dismiss on the grounds that Wall failed to include the affidavit.

However, Wall fought the motion, arguing that 12 O.S. 2011 Section 19 was unconstitutional based on Zeier v. Zimmer. In Zeier, the Supreme Court of Oklahoma had held that the affidavit of merit requirement, found in another section of the Oklahoma statutes, was an unconstitutional special law. That law required an affidavit in any action for medical liability.

Wall argued that 12 O.S. 2011 Section 19 was unconstitutional because it violated the Oklahoma Constitution’s Section 46 prohibition on special laws. “We agree,” the court said, explaining that the essence of Article 6, Section 46 is that the legislature shall not pass a special law regulating the practice of judicial proceedings before the courts or any other tribunal. 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 of the law. A law is special if it confers particular privileges or imposes peculiar disabilities or burdensome contradictions in the exercise of a common right on a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law. The shortcoming of a special law is that it creates preference and establishes inequality, the court observed.

Title 12 O.S. 2011 Section 19 creates a subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors, the court said. In doing so, it places “an out of the ordinary enhanced burden” on these groups in accessing 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 establishes an impermissible special law regulating the practice of judicial proceedings before the courts, the court said.

The court also noted problems with vagueness where the use of the term “professional negligence” is concerned. Does it mean that one is required to obtain an affidavit of merit before filing suit against any doctor, lawyer or clergyman for negligence in performing their duties? – the court asked. Taken to the ultimate logical conclusion, an affidavit would be required for almost every cause of action, the court observed. The court also noted that an action for professional negligence is a medical liability action.

Because the affidavit of merit provision found in 12 O.S. 2011 Section 19 is functionally the same as the previous unconstitutional provision analyzed in Zeier, it is also unconstitutional, the court said.

Wall also argued that 12 O.S. 2011 Section 19 created an unconstitutional burden on access to the courts. The court agreed, declaring that Title 12 O.S. 2011 Section 19 is an unconstitutional economic burden on access to the courts under the Oklahoma constitution.

Once again the court examined Zeier, among other cases, pointing out, that it had agreed with another plaintiff that a statutorily created requirement for the payment of professional services as a prerequisite to filing a petition alleging medical negligence violated the guarantee of access to the courts. The court also noted, while it had found a $349 fee to be valid in another case – Barzellone v. Presley — that it had calculated that the cost of obtaining a professional’s opinion to support the affidavit of merit could range from $500 to $5,000 – an amount that would cross the line to become an unconstitutional burden on accessing the courts.

Barzellone and Zeier illustrate that while reasonable fees to defray the cost of litigation are not a violation of the right of citizens to access the courts; the costs associated with obtaining affidavits of merit go beyond the bounds of reasonableness set in Barzellone, the court said.

“When the cost of obtaining an affidavit of merit in professional negligence actions is added to the already high and increasingly rising cost of using the court system to resolve disputes, the result is that a line is crossed, and litigation costs go from being merely a hurdle to being an unconstitutional burden on accessing the courts,” the court declared, adding that the idea that money cannot be used as a bar to deny justice predates the Oklahoma Constitution and is one of the fundamental values of our legal system.

Title 12 O.S. 2011 Section 19 creates a monetary barrier to access the court system and then applies that barrier only to a specific class of potential tort victims — those who are the victims of professional negligence. The result is a law that is unconstitutional both as a special law and as an undue financial barrier on access to the courts, the court said.

More than a handful of courts have deemed the affidavit requirement unconstitutional. The Maryland courts, however, do require the affidavit in medical malpractice lawsuits.

Baltimore, Maryland-based Belsky & Horowitz has been fighting for clients who have been the victims of negligence and personal injury for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.



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