In a companion case to Douglas v. Cox Retirement Properties, Inc., the Oklahoma Supreme Court threw out the requirement that a plaintiff must file an expert’s affidavit at the time of filing suit for medical malpractice. The patient, Timothy Wall, filed a petition alleging medical negligence against Dr. John S. Marouk when the doctor allegedly cut the median nerve in his right arm during carpal tunnel surgery. The result of this mistake was loss of feeling in his right fingers. 12 O.S. 2011 §19 requires filing of an affidavit of merit in actions for professional negligence. The patient did not, the doctor moved for dismissal and the case was indeed dismissed.
However, the Oklahoma Supreme Court Title invalidated 12 O.S. 2011 §19, which provides that in civil actions for professional negligence, the plaintiff must attach an expert's affidavit. The Court found that §19 is unconstitutional. It violates the Okla. Const. art. 5, §46 prohibition on special laws because it created two classes of plaintiffs bringing:
Cases alleging professional negligence
Cases alleging general negligence
In finding 12 O.S. 2011 §19 unconstitutional under the Oklahoma Constitution, the Court explained what was wrong with a special law: “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.”
The increased cost of bringing suit against a professional, requiring an expert affidavit at the time of filing, placed an “out of the ordinary enhanced burden” on the victims of professional misconduct.
In addition, the Court found that 12 O.S. 2011 §19 was an unconstitutional burden on access to the courts to redress injury and harm. Wall v. Marouk
Oklahoma residents deserve access to justice, using the laws and courts to secure their rights and privileges of citizenship.
Posted in Medical Malpractice
Tagged Douglas v. Cox Retirement Properties, medical malpractice, medical malpractice lawyers