With about two dozen doctors in white lab coats peering down from legislative galleries, state lawmakers Thursday passed a series of bills aimed at deterring frivolous lawsuits and resolving constitutional issues raised by the Oklahoma Supreme Court.
All of the 12 Senate bills and 12 House bills taken up Thursday passed overwhelmingly. Many votes were unanimous. But there was spirited debate over a Senate bill that would require an individual to first obtain a certificate of merit from a qualified expert before being allowed to proceed with any negligence lawsuit in which an expert witness is required. That bill eventually passed by a vote of 33-11.
Senate Minority Leader Sean Burrage, D-Claremore, led the opposition.
“I fully expect this bill will be found unconstitutional,” Burrage said, arguing the proposed law would prevent citizens with legitimate grievances from gaining access to the courts.
“Why would we vote again to essentially send the Supreme Court another piece of unconstitutional legislation?” Burrage asked. “Doesn't that make us look a bit strange or even incompetent? Aren't we tired of being scolded by the court for passing unconstitutional legislation?”
The Oklahoma Supreme Court last June struck down a 2009 lawsuit reform law, ruling that it improperly focused on more than one topic.
Justices found additional problems with the certificate of merit requirement, ruling that it was unconstitutional because it was a special law pertaining only to professional negligence cases. Justices also ruled that requiring a certificate of merit was an unconstitutional financial barrier to court access because such expert opinions can cost thousands of dollars. The law contained a provision allowing poor people to obtain a waiver to the certificate requirement by paying a $40 fee to file for an indigency exception, but justices found that was also an improper financial barrier to court access.
Anthony Sykes, one of the Senate authors of the new certificate of merit bill, said lawmakers believe they appropriately addressed the court's concerns in the new bill.
The new bill requires certificates of merit to be obtained in all types of negligence cases where expert witness testimony is required, not just professional negligence cases, said Sykes, R-Oklahoma City. The bill does away with the $40 filing fee for indigency exceptions but still allows indigent people to get the certificate of merit requirement waived.
“I'd say we're being responsive to the court,” Sykes said. “I'd also say I think the court has really gone off the deep end.”
Burrage argued the new bill creates even bigger problems than the old one concerning citizens' access to the courts.
The original law was designed to deter frivolous medical malpractice lawsuits. Burrage said in those cases victims of malpractice at least are entitled to their own medical records, which gives them evidence upon which an expert witness can base a negligence opinion for a certificate of merit.
In many other types of lawsuits, attorneys can't even get access to documents proving negligence until after they file the lawsuit and obtain access to records through the legal discovery process, he said. Burrage said victims in those types of cases would be denied the ability to pursue legitimate lawsuits if the bill becomes law.
Doctors praise efforts
Doctors who swarmed the Capitol on Thursday praised lawmakers' efforts to re-enact laws to curb medical malpractice lawsuits.
“Our lawmakers did the right thing in 2009, passing these important reforms on a bipartisan basis,” said Dr. Robert McCaffree, president of the Oklahoma State Medical Association in a Thursday news release. “We hope that lawmakers will once again put aside their partisan differences and put back the commonsense protections that their physician constituents need and deserve.”
Dr. Eric L. Cottrill, who works at the Tulsa County Medical Society, said he believes certificate of merit legislation is not only necessary but needs to be stronger.
Cottrill said he would like to see a provision requiring all experts used for certificates to be licensed and practice in Oklahoma. He said many experts come from all over and contends they are not always objective or truthful.
“Unfortunately, there are people who are professional testifiers across the country for their employment,” he said. “And, you can hire these folks, physicians, and have them review things, and because they're being paid to do it, there could be some question about their objectivity.”
The certificate of merit bill, along with the remaining 11 passed in the Senate, now head to the House for consideration.
State representatives moved at a slower pace Thursday but discussed and passed 12 of their original 14 lawsuit reform measures on to the Senate, which will take them up Friday morning. While some House measures received overwhelming bipartisan support, much of the voting on Thursday was along party lines.
Among the measures passed in the House was House Bill 1009, a measure establishing criminal penalties for students who assault school employees or volunteers. House Democrats took issue with several aspects of the bill, calling it shortsighted.
“Any sixth-grade student who is special needs, autistic, if they lash out at their teacher or volunteer and attempt to cause bodily injury … that student shall be suspended from school. Shall. Not may. Shall,” said Rep. Joe Dorman, D-Rush Springs. “We are taking away the rights of the school to determine if there is an exception there or if that student should be allowed in school.”
House and Senate leaders both have taken steps the speed up the special session, noting it is costing taxpayers about $30,000 a day.
Senate President Pro Tem Brian Bingman, R-Sapulpa, said lawmakers could conclude their business as early as Monday if everything continues to go smoothly.
Lawmakers decided not to take up some bills Thursday after concluding changes made in 2011 fixed some of the problems with the 2009 law that prompted the special session.
For example, lawmakers concluded there was no need to re-adopt a law that placed a $350,000 cap on noneconomic damage awards in lawsuits unless the person being sued committed acts that were grossly negligent, fraudulent, intentional, done with malice or involved the reckless disregard of the rights of others.