THE Legislature will convene in special session on Tuesday to reapprove lawsuit reforms recently struck down on a technicality by the Oklahoma Supreme Court.
There's no doubt Oklahoma needs reasonable restrictions on bogus lawsuits. Frivolous litigation affects all parts of the economy; health care is often hardest hit. The cost of successfully defending harassment lawsuits drives up overhead, threatening businesses' continued viability. Lawsuits should be a last resort; too often, they appear to be the first response by some citizens.
In recent years, the Legislature has enacted several laws reining in abusive lawsuits. The state Supreme Court ruled that one of those laws violated a constitutional provision requiring that bills cover only a single subject. As a result, lawmakers must now pass the same law again — this time broken up into more than two dozen bills to avoid another “logrolling” ruling.
Before the law was struck down, it was working as intended. Some lawsuits were being tossed for failure to meet new standards. One provision of the law required that individuals filing a lawsuit provide an expert's affidavit stating the plaintiff had good cause to file suit. Trial lawyers claim this is a financial barrier to court access because the affidavits can cost up to $5,000. Yet trial lawyers also tout the fact that they often bear the up-front costs of litigation, paying $50,000 to $100,000 per case.
Trial lawyers make money later off their cut of any plaintiff's award. This, they argue, encourages lawyers to pursue only legitimate cases. Fair enough. So why is paying $100,000 up front no problem, but paying $105,000 up front is suddenly an unreasonable barrier to the courts?
Lawsuit defenders also ignore the fact that many lawyers were previously willing to file lawsuits of questionable merit because the defendant's cost of fighting the lawsuit was often greater than the cost of a potential settlement. This encouraged settlements even in weak cases. Lawyers could put in minimal work and still get a payoff for frivolous litigation. Such cases are a prime target of lawsuit reform.
In cases where attorneys expend $100,000 in advance, they undoubtedly think they have a good case. That won't change under the reforms being resubmitted in the special session.
Lawsuit boosters point out that one case bounced from Oklahoma courts due to lawsuit reform targeted a Tulsa psychiatrist prosecuted for drug distribution and Medicaid fraud. Several of psychiatrist David Crass' patients died, and one patient's family sued, alleging their son died from an accidental overdose after Crass prescribed a lethal mix of medications. From that description, it's hard to see how an attorney representing the family couldn't get an expert's affidavit declaring the case valid.
In some cases, tort reform may not be the cause of a lawsuit's failure. Attorney competence plays a big role in successful litigation. Historically, around 70 percent of lawsuits against medical providers have been dis-missed without payment. That's a sign of questionable litigation and justifies imposing reasonable restrictions.
Since lawmakers won't be plowing new ground, but recycling old legislation, this special session should be a short one. These issues have already been thoroughly vetted and debated, and four years ago were approved with bipartisan support. Oklahomans deserve protection from frivolous lawsuits. Lawmakers should provide that protection as quickly as possible — and go home just as fast.