Good for the Oklahoma Supreme Court.
The high court struck down as unconstitutional a 2003 provision that requires patients to get a medical expert to sign an affidavit that their lawsuit has merit before they can proceed with a medical malpractice lawsuit.
Legislators approved the law to prevent frivolous lawsuits, something we’ve heard a great deal of from lawmakers who say frivolous lawsuits are wrecking medical practices and health care. They are to some extent. But this was a terrible law on two counts.
First, as the Supreme Court pointed out, it creates a “monetary barrier to court access.”
According to an Associated Press story, an affidavit of merit usually costs from $500 to $5,000 and thus, effectively prevented people of low income from being able to initiate a malpractice suit.
It seems the law, too, created an inherent conflict of interest. The idea behind a lawsuit is to allow people without an interest in the suit to decide between plaintiff and defendant. But the law allowed the health industry, the industry involved in the malpractice suit, to make a decision beforehand whether the suit had merit.
We are for lawsuit reform, but there are alternatives that make better sense. Let’s set limits to punitive damages, and limit the percentage that attorneys can receive from judgments in their clients’ favor. We also believe those who file a civil suit and lose, should pay some of the costs. Some have questioned loser-pay, but we should consider the option.
The thing that’s clear, and the Supreme Court recognized, is the reform of 2003 was seriously flawed.