Certificate of Merit Law Struck Down in Oklahoma

On October 24, the Oklahoma Supreme Court determined a state law in medical malpractice cases to be unconstitutional. The law required that a medical malpractice lawsuit must include an affidavit of merit from an expert, who has concluded that the case has merit. Basically, a medical expert must sign off on a case, testifying that a medical professional deviated from normal or safe practice, injuring the patient. The court concluded that the statute created “a costly, meaningless and arbitrary barrier to court access.”

Many states require a certificate of merit to move ahead; without such a certificate, a medical malpractice case can be dismissed outright and with prejudice. Some have taken certificate of merit requirements further, mandating that certificates must be filed within 90 days of filing a suit. Other states require plaintiffs give defendants 60 days’ notice of their intent to sue before filing.

Certificate of merit requirements aren’t an efficient vetting procedure; conversely, they serve as a vehicle to further the “tort reform” movement (propagated by individuals who believe there is too many frivolous lawsuits.  The real fact is that certificates of merit do nothing but further burden victims and prevent access to our civil justice system. If an average juror can examine the facts and make a determination whether a doctor was negligence, why is an expert necessary?  If I punch you in the face and break your jaw, whether I am a doctor or not, you can sue me for assault and battery; you assuredly wouldn’t need a Certificate of Merit.  Is there any real difference?

The idea that tort reform is positive for the “people” is a farce. Tort reform makes all of us less safe. By placing limits on amounts that wrongdoers are required to pay, state legislatures remove the incentives for corporations to put safety over profits. They also disable juries from being able to properly compensate the victims. Any attempt to take power away from a jury is an attempt to take power away from citizens. When tort reform bails out irresponsible corporations, doctors, and hospitals, it closes the courthouse doors to victims, undermines our constitutional protections, and leaves taxpayers holding the bill.

Although the Supreme Court decision is favorable news for the citizens of Oklahoma, the fight is surely not over. Lawmakers won’t give up; this was the third time since 2006 that the court struck down the law. Citizens should never give up either. All victims deserve the right to tell their story; to exercise their right to trial by jury under the Seventh Amendment. Justice should never be for sale! We must voice our opposition to our legislators. We should demand safety, accountability, and transparency. We should not relinquish our Constitutional Rights.

Mark Bello is an attorney/author/mediator. Visit www.markmbello.com to learn about Mark and his literary and legal content and services.