When tort reform swept the country more than a decade ago, many states imposed numerous pre-suit requirements to weed out meritless claims against medical and non-medical professionals.
Tort reform, however, hasn’t been at the top of most states' legislative agenda in years.
Now it appears that some appeals courts may be pushing back against one of medical and non-medical professionals’ key, hard-earned defenses – certificates of merit.
In October 2017, the Oklahoma Supreme Court became the latest to strike down its state’s certificate of merit statute as unconstitutional. John v. Saint Francis Hospital, Inc., 405 P.3d 681, 687 (Oct. 25, 2017).
The John Court held: “the thrice incarnated affidavit of merit requirement found in Okla. Stat. tit. 12, § 19.1 (Supp. 2013)” “is an impermissible barrier to court access and an unconstitutional special law.”
The John Court held “[t]he courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” Okla. Const. art. 2, §6.
Oklahoma’s newest certificate of merit statute was among the broadest in the country. Oklahoma Statute, Title 12, Section 19.1. It required plaintiffs to serve with their petition a certificate of merit to establish a breach of the standard of care by the defendant professional in any civil action for negligence. Id.
Oklahoma's Supreme Court had struck down an earlier statute limited only to medical malpractice claims. Wall v. Marouk, 302 P.3d 775 (Okla. 2013).