Thursday, June 6, 2013
stunning development, the Oklahoma Supreme Court has invalidated a sweeping
tort reform bill passed in 2009. The
particular provision at issue in Douglas
v. Cox Retirement Properties, Inc., 2013 OK 37, a wrongful
death action against a nursing home, was the requirement of an expert's "affidavit
of merit" to be filed with or shortly after the filing of the complaint in
a professional negligence claim. When
the plaintiff failed to file the affidavit of merit, the trial court granted
defendant's motion to dismiss. The
Oklahoma Supreme Court reversed.
The expert affidavit of merit requirement was just one portion of Oklahoma H.B. 1603, the so-called Comprehensive Lawsuit Reform Act of 2009. The bill has 90 separate sections encompassing such disparate topics as transfer of cases, limitations on noneconomic damages, suing fast food providers, and a host of other provisions. The court held that H.B. 1603 violated Article 5, Section 57 of the Oklahoma Constitution ("Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title"), commonly known as the single-subject rule. "The purposes of the single-subject rule are to ensure the legialtors or voters of Oklahoma are adequately notified of the potential effect of the legislation and to prevent logrolling."
A separate opinion, Wall v. Marouk, 2013 OK 36 (June 4, 2013), also invalidated the affidavit of merit requirement in a medical malpractice action. The court held that the requirement violated two other Oklahoma constitutional provisions, one prohibiting "special laws" (Okla. Const. art. 5, §46), and the other guaranteeing right of access to the courts (Okla. Const. art. 2, §6).