Friday, May 9, 2008
Not In My Courtroom: Oklahoma Bill Requires Plaintiffs Claiming Professional Negligence To Attach Expert Affidavits
Oklahoma is trying to make it more difficult for potential plaintiffs to file lawsuits containing allegations of professional negligence. Pursuant to House Bill 2458, a potential plaintiff in a civil lawsuit for professional negligence (most often medical malpractice) must attach to his petition an expert affidavit attesting that a "reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant … constituted professional negligence." The affidavit must specifically indicate that the plaintiff has consulted a qualified expert who has reviewed the available records and other facts, and that the qualified expert has provided a written opinion stating that the facts support a finding that the defendant was professionally negligent.
The bill would provide for dismissal of the suit without prejudice if the affidavit is not attached and states that the affidavit would not be admissible in court. Ostensibly, the new bill is part of the state's continuing effort to prevent frivolous lawsuits from wasting court resources, an effort which was started back in 2004 when similar legislation only applying to medical malpractice was enacted (and was subsequently thrown out by the state supreme court for being too narrowly tailored). This new bill, however, covers all kinds of professional negligence and thus presumably covers, inter alia, attorney malpractice.
Now, some of you may be wondering why this new sine qua non of a professional negligence lawsuit -- the affidavit -- is itself inadmissible according to the bill. Well, presumably it is because, like its federal counterpart (Federal Rule of Evidence 704), 12 Okl.St.Ann. Section 2704 permits expert opinion evidence that embraces ultimate issues in a case but precludes expert opinion evidence that embraces ultimate legal conclusions. In other words, an expert could opine that a plaintiff was injured when a doctor operated on him too soon after he had eaten (an ultimate issue in a medical malpractice case) but could not testify that the doctor's actions constituted medical malpractice (an ultimate legal conclusion).