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The Oklahoma Supreme Court Strikes Down the "Affidavit of Merit" Requirement in Medical Liability Lawsuits
Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861
In 2003, the Oklahoma legislature passed a variety of measures called the Affordable Access to Health Care Act (and more commonly known as "tort reform"). One of those measures required a patient to consult with an expert witness prior to filing a medical malpractice lawsuit against a doctor or hospital. After the consultation, the plaintiff's attorney was required to file an affidavit which established that the expert agreed that the patient’s lawsuit had merit. In Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861, the Oklahoma Supreme Court found the affidavit requirement was unconstitutional. The Court held that the affidavit law was a "special law" that was prohibited by the Oklahoma constitution because it treated medical malpractice cases differently than all other negligence cases. In addition, the Court found that the affidavit requirement was an unconstitutional "barrier to the access to courts." The Court held that medical malpractice plaintiffs cannot be forced to incur the cost of consulting with an expert witness at the cost of between $500 and $5,000 before they may file their lawsuit.
The Zeier opinion calls into serious question the remaining tort reform provisions contained in the Affordable Access to Healthcare Act, as it could be argued that many of the provisions of that Act are "special" and unconstitutional. And, because the Zeier decision was based on a constitutional provision, the Oklahoma Legislature will likely be required to seek a constitutional amendment if it desires to pursue additional tort reform measures such as the "affidavit of merit" law.
The "Alternative Diagnosis and Treatment" Defense is Narrowed
Taliaferro v. Shahsavari, 154 P.3d 1240 (Okla. 2006)
The Court also issued another medical malpractice opinion in Taliaferro v. Shahsavari, 2006 OK 96, where the Court found that a new trial was warranted even though a jury had found in favor of a doctor at the conclusion of a jury trial. That case involved a variety of legal issues, including an issue related to a doctor’s right to rely on "alternative diagnoses and treatments." The patient alleged that the doctor had failed to properly diagnosis his heart condition and was negligent in relying on tests performed the day before by another doctor. The trial court had instructed the jury that "where there is more than one medically accepted method of diagnosis, a physician has the right to use his best judgment in the selection of the diagnosis, after securing the informed consent of the patient, even though another medically accepted method of diagnosis might have been more effective." The Supreme Court found that this instruction, while accurately stating the law, was not appropriate and misled the jury because the doctor's failure to perform any testing on the patient (the day before his heart attack) could not be characterized as a "diagnosis." The Court stated that a "physician arrives at a diagnosis as a result of trying different treatments on the patient and seeing what works" and that "[d]oing something and doing nothing do not add up to two methods of diagnosing a disease." The doctor's expert witness had testified that the doctor had not breached the standard of care but, according to the Court, the expert did not testify about whether the doctor employed alternative methods of diagnosis.
After the Court's opinion, the "alternative diagnosis" instruction is only appropriate where the defendant-doctor shows – through expert testimony – that the challenged alternative diagnosis has "substantial support" and is generally recognized in the medical community. It is unlikely that the instruction will be appropriate in many "failure to diagnose" cases because, as the Court held, such negligence "lies in failing to do something" and not in "negligently choosing between two or more courses of action."
Court Will Not Require "Magic Words" Regarding Medical Causation
Jones v. Mercy Health Center, Inc., 155 P.3d 9 (Okla. 2006)
Finally, in Jones v. Mercy Health Center, Inc., 2006 OK 83, the trial court ruled for the defendants, finding that a jury trial was not necessary as to a hospital and certain medical professionals because of the absence of expert testimony regarding whether the defendants' care and treatment caused the patient’s death. The Supreme Court, on the other hand, found otherwise and ordered that the case go to trial.
In that case, the patient allegedly entered an emergency room with significant abdominal pain and constipation, and x-rays revealed the presence of a large amount of stool in the patient’s colon. The medical professionals diagnosed the patient with fecal impaction and prescribed an enema. The patient left the emergency room five hours later. He then traveled to another hospital, where he was allegedly in shock, and had a distended abdomen. He was "rushed to surgery" to relieve the pressure on his colon. He died before surgery could be completed. The patient’s family sued the first hospital and certain medical professionals working there, claiming that they should have, among other things, taken the patient’s vital signs more than once, should have recorded the amount of enema administered and the amount of stool produced, and should have administered intraveneous fluids early in his stay. The patient’s experts stated that a CAT scan or a surgical consult should have been obtained and that an enema was "medically inappropriate because of the risk of further distending or perforating" the colon. However, the patient’s experts could not state that the defendants’ care or treatment "caused" the patient’s death and indicated that a more definitive answer would have to come from a surgeon. Another of the patient’s expert witnesses stated that, while the doctors’ care "contributed" to the death, it would be "speculative" to state categorically that the defendants "caused" the patient’s death.
The Supreme Court overruled the trial court and found that a plaintiff's expert does not need to speak "magic words" before an issue will be allowed to be decided by the jury. The Court held that sufficient evidence had been presented to show that the patient’s heart stopped "because of the effects of the untreated fecal impaction causing megacolon, megarectum, and widespread infection." The Court also determined that a jury should be allowed to consider whether the defendants’ actions resulted in a substantial decrease in the chance of the patient’s survival.
State Constitutional Challenges
The Oklahoma Supreme Court has, of late, been amenable to challenges of state statutes as violative of the Oklahoma Constitution. For instance, in the recent case of Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557, the Court analyzed a worker's compensation statute that created a rebuttable presumption in favor of the treating physician's determination of the extent of the claimant's disability. (The statute allowed the employer to select the treating physician.) One subsection of the statute, however, allowed the presumption to be rebutted only where the opinion of an independent medical examiner showed the opinion of the treating physician was not supported by "objective medical evidence." In such a case, the statute directed the worker's compensation court to follow the opinion of the independent medical examiner, the opinion of the treating physician, or establish its own opinion "within the range of opinions of the treating physician and the Independent Medical Examiner."
The Court first rejected a constitutional challenge to the rebuttable presumption, finding it did not "change the value or weight of the evidence," but merely imposed upon the opposing party "the duty to offer evidence to the contrary." The Court, nevertheless, was troubled by the subsection limiting the scope of evidence available in rebutting the presumption. The Court held that the language of the statute impermissibly encroached on the powers of the judicial branch of government (in conflict with Oklahoma Constitution, art. 4, sec. 1) by attempting to "predetermine the range of the adjudicative facts" and improperly invaded "the judiciary's exclusive constitutional prerogative of fact-finding." In other words, the subsection gave determinative effect to the opinions of the medical examiner and the treating physician, even in situations where such opinions were not supported by objective medical evidence. The Court severed the offending subsection from the remainder of the worker's compensation act, and remanded the case.
Conaghan and Zeier may indicate that the Court is more amenable to accepting, or at least considering, challenges to state statutes on state constitutional grounds.
Bifurcation
Courts have broad discretion to bifurcate claims pursuant to Federal Rule of Civil Procedure 42(b). In a recent case, the defendant requested that the District Court for the Northern District of Oklahoma bifurcate plaintiff's breach of contract claim from the bad faith claim. The defendant claimed the bifurcation would conserve judicial resources and avoid prejudice to the defendant. The plaintiff did not object to the request.
Nevertheless, in a written opinion, the Court denied the request to bifurcate. The Court noted that it frequently conducts trials inolving such claims and that, absent extraordinary circumstances, the Court does not bifurcate contract claims from bad faith claims during the liability/compensatory damages phase. And, the Court found no compelling reason to diverge from its general policy. The Court noted that it would bifurcate the liability/compensatory damages phase from the punitive damages phase, if necessary.
It should be noted that, in the state court system, the trial court (absent unusual circumstances) has no authority to bifurcate the contract claim from the bad faith claim. One Court has noted in an opinion that such "theories are connected and . . . should not be bifurcated." It appears that a state trial court has no discretion in this regard. "[T]he issue of whether the insureds had a legal right to recover from the uninsured motorist was not separable from the question of whether the insurer had a good-faith belief that it had a justifiable reason for withholding payment under the policy." See Newport v. USAA, 2000 OK 59, ¶ 26, 11 P.3d 190, 198
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