Oklahoma Medical Malpractice New Filing Requirement Vetoed
Oklahoma Governor Brad Henry vetoed a bill yesterday that required Oklahoma lawyers representing medical malpractice victims to obtain certificates of legal merit from a medical doctor before filing a malpractice lawsuit, citing an Oklahoma Supreme Court ruling that requiring a certificate of merit is unconstitutional.
When bringing a medical malpractice action in most jurisdictions, a medical malpractice lawyer must file a separate certificate of merit for each doctor or other medical provider setting forth that to a reasonable degree of medical probability, the medical provider's malpractice caused the plaintiff injury. I do not know the nuances of the bill.
I am sure that Governor Henry believes he is fighting for the rights of medical malpractice victims or is correct on the issue of whether the statute would pass the Oklahoma Supreme Court. But I’m not sure if a certificate of merit is a bad idea to discourage frivolous medical malpractice lawsuits. The problem is that frivolous malpractice cases reflect poorly on medical malpractice lawyers and their clients which hurts when a lawyer is trying a meritorious medical malpractice claim to a jury.
The gut reaction in any litigation context - especially medical malpractice - is that it is a zero sum game. What is good for the bad guy is bad for the good guys. The corollary argument is that medical malpractice reform is a slippery slope: first certificates of merit and then a Texas-like cap on malpractice awards. But life is is lived on a slippery slope. Free speech and freedom of assembly can lead to chaos and police can lead to totalitarianism. At some point, in a democracy, we need to trust that we will know where to draw the lines. Accordingly, before malpractice lawyers celebrate this veto, they might want to consider whether this bill was the best thing for both Oklahoma medical malpractice lawyers and Oklahoma doctors.
With all due respect to the author, I fail to see the need for so much concern over "frivolous lawsuits". First, the days of fast cheap settlements for nuisance value, if there ever were such times, are long gone. Medical malpractice defense attorneys invariably call the plaintiffs to task, as well they should.
Second, I have reviewed more than 1,250 cases for attorneys over the past 25 years and 1.215 of them have settled before trial. Hence, I personally have never seen a medical malpractice plaintiff's attorney spend tens of thousands of dollars pursuing a frivolous lawsuit. The deterrent is built into the contingency fee system.
Finally, the issue of whether the plaintiff is required to obtain a certificate of merit or not is a moot point because in order for plaintiff attorneys to survive financially, they absolutely need to know if they can get an expert to support their clients' contentions.
You incorrectly assume that cases you would review are representative of the entire malpractice case population. They are not. Pro se litigants and lawyers that have no clue what they are doing file cases without knowing the law and thinking maybe they can get a quick settlement. Who is hiring you? Not random inexperience lawyers or pro se plaintiffs.
I'm surprised by (1) that you would have the exact number of case you have reviewed and the settlement histories, and (2) the percentage of cases you have been involved with that settled. Most good cases settle, I agree. But sometimes, you have to try a case. You are saying that almost 99% of your cases have settled. That just seems incredibly high.