Affidavit Of Merit In Medical Negligence Lawsuits

In 2012, Saint Francis Hospital, Inc., Neurological Surgery, Inc., and Douglas Koontz, M.D., performed decompressive laminectomies on Johnson John’s spine. After surgery, John allegedly became partially paralyzed, suffered constant pain, and was hospitalized for four months.  The patient filed suit alleging gross negligence and medical malpractice against the hospital, medical group, and surgeon for failure to render reasonable medical care and a breach in the duty of care.  The respondents argued that the plaintiff had not submitted an “affidavit of merit” and argued that the case be dismissed.

In Johnson John, Respondent, v. Saint Francis Hospital, Inc., Neurological Surgery, Inc. and Douglas Koontz, M.D., Petitioners, the Supreme Court of the State of Oklahoma stated:

On July 8, 2016, Patient averred that the statutory directive unconstitutionally restrained a litigant’s right to access the courts and was an unconstitutional special law. On August 5, 2016, the district court provided notice to the Attorney General’s office concerning the challenged statute. As intervenor, the Attorney General filed its notice to the court and supplemental authority on October 11, 2016, essentially urging the district court to enforce the affidavit requirements. After hearing arguments and reviewing the parties’ submissions, the district court overruled Appellants’ motions to dismiss. In doing so, the district court rejected Patient’s special law challenge but determined that, section 19.1 unconstitutionally imposes a substantial and impermissible impediment to access to the courts. This barrier is unconstitutional regardless of the financial worth of a litigant and is not cured by exercising the indigent from this burden.

In Now It’s Easier for Patients in Two States to Sue, Wayne J. Guglielmo, Medscape – Nov 17, 2017, wrote commentary:

Laws in two states aimed at cutting down on what critics charge are frivolous or nonmeritorious lawsuits have run into constitutional roadblocks, as separate stories posted on the websites of the Insurance Journal and the Lexington Herald-Leader report.

In Oklahoma, the Supreme Court ruled that a state law requiring that an “affidavit of merit” be submitted when filing a medical negligence action is unconstitutional. The law, part of a larger statute governing professional negligence, set out three steps for prospective plaintiffs to follow:

  • Have a qualified expert review the facts of the claim;
  • Have that expert submit a written opinion that the defendant’s actions or omissions constituted negligence; and
  • Based on that opinion, conclude that the claim being filed is meritorious and based on good cause.

In two previous cases involving the same law, the high court had ruled that the affidavit requirement “imposes a substantial and impermissible impediment to access to the courts.” In the current case—John v Saint Francis Hospital, in which a surgeon filed a motion to dismiss the case because a plaintiff had failed to follow the affidavit requirement—the court reached a similar conclusion, noting that the law places “an impermissible barrier on a plaintiff’s guaranteed right to court access.”

Guglielmo also writes, “In sending the case back to the district court, the justices further noted: ‘The obvious purpose of the affidavit requirement reflects the Legislature’s desire to deter and weed out non-meritorious negligence claims…. But, in spite of its successive enactments, the Legislature has failed to remedy the inequalities this Court continues to identify as problematic in its prior decisions.”


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