Okla. Supreme Court Ruling Puts new Twist on Civil Liability Debate

February 2, 2007

For Dr. David Russell, an Enid radiologist and president of the Oklahoma State Medical Association, the debate over civil justice reform in Oklahoma isn’t about the politics that has kept many reform measures bottled up at the state Capitol.

The debate, Russell said, is about lawmakers’ willingness to limit a physician’s civil liability when their patients are harmed to control medical malpractice insurance rates that have forced some to retire early and others to take their practices to other states.

“It has to do with are we going to have sufficient doctors to provide care to the people of our state,” Russell said.

Others see the debate differently.

Jennifer De Angelis of Tulsa, president of the Oklahoma Trial Lawyers Association, said the debate is about preserving Oklahomans’ constitutional right to go to court when they are injured by someone else and whether physicians should receive special treatment in civil justice statutes.

“The issue is physicians don’t want to be sued at all. They want complete immunity. I have a tremendous problem with that,” De Angelis said.

“They don’t want the hassles, the stress and the cost. This is not an economic issue at all,” she said.

The debate over Oklahoma’s civil justice system will resume on Feb. 5 when lawmakers convene the 2007 Legislature and consider proposals to make it harder for frivolous lawsuits to make it to trial, limit unreasonable class-action lawsuits and place limits on non-economic damages in civil lawsuits.

“It’s too early to speculate on how it’s going to turn out,” said Sen. Owen Laughlin, R- Woodward, the Senate’s co-floor leader.

“The thing that’s driving this is the cost of insurance,” Laughlin said. “It’s clear that other states have passed significant tort reform that has significantly helped them attract jobs and business – and attract capital.”

This year’s civil justice debate will have a couple of new twists.

First, the 48-member Senate, which in recent years has blocked civil justice reform proposals while under Democratic control, is divided evenly among Democrats and Republicans this year – a political makeup that could give the measures a better chance of passage, said Senate President co-Pro Tem Glenn Coffee, R-Oklahoma City.

“There are opportunities for all kinds of amendments on tort reform,” Coffee said.

Supporters of civil justice reform will also be working to correct constitutional flaws in an earlier measure that was invalidated by the Oklahoma Supreme Court in December.

In an 8-1 ruling, the high court struck down a provision of a 2003 law that required patients to get a certificate from a medical expert that their lawsuit had merit before they could proceed with a medical malpractice lawsuit.

The majority of justices ruled the requirement was an unconstitutional special law prohibited by the Oklahoma Constitution. They also said the requirement that a medical malpractice claimant obtain a professional’s opinion at a cost of up to $5,000 was an unconstitutional monetary barrier to the courts.

“You have to hire an expert – and that can be very expensive,” Coffee said.

The Supreme Court’s ruling was a setback to the state medical association and the Physicians Liability and Insurance Co., which writes medical malpractice insurance to about 5,000 Oklahoma physicians.

“There were a lot of uncomfortable sighs,” said Dr. W. Frank Phelps, interim executive director of OSMA.

Phelps said the legislation was designed to stop frivolous lawsuits and that claims filed with PLICO had “sort of leveled off” before the decision.

“We think that helped a little,” Phelps said. “Essentially, the Supreme Court overturned it. Our fear is the spike will start again.”

De Angelis applauded the Supreme Court’s decision and said it helps to equalize the burden faced by patients and physicians in malpractice cases.

“The emphasis needs to lie on making the process itself more efficient and providing safeguards on both sides,” she said.

Coffee and Rep. Rob Johnson, R-Kingfisher, have authored civil justice reform measures filed in the 2007 Legislature.

“We must make Oklahoma’s legal system more reasonable,” Johnson said. “Lawsuits in Oklahoma are out of control, and if we’re going to move our state into the next century of our history, we must make our system more reasonable and fair to everyone involved.”

Coffee’s measure seeks to expand the certificate of merit requirement in civil lawsuits to other professionals to prevent its interpretation as an unconstitutional special law for physicians.

Among other things, Johnson’s measure would protect school officials from being sued for reasonably punishing unruly students and limit the amount a defendant can be required to pay to secure the right to appeal.

Another measure by Rep. Doug Cox, R-Grove, lifts the restriction on the medical specialties under which the $300,000 non-economic damages cap applies in medical malpractice lawsuits.

Existing law applies only to obstetricians and gynecologists as it relates to pregnancy and medical professionals involved in emergency room care. Wrongful death or negligence are exceptions to the cap.

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