declaring 12 O.S.2011 § 19--which required plaintiffs alleging professional negligence to consult with, and to obtain a written opinion from, a qualified expert in support of their claim prior to filing their lawsuits--was "a special law which violates the Okla. Const. art. 5, § 46" and also "an unconstitutional financial burden on access to the courts in violation of the Okla. Const. art. 2, § 6"
How later courts described this case
- declaring 12 O.S.2011 § 19--which required plaintiffs alleging professional negligence to consult with, and to obtain a written opinion from, a qualified expert in support of their claim prior to filing their lawsuits--was "a special law which violates the Okla. Const. art. 5, § 46" and also "an unconstitutional financial burden on access to the courts in violation of the Okla. Const. art. 2, § 6"
Written by the judges who cited it.
The opinion
WINCHESTER, J.,
dissenting:
11 I respectfully dissent. I cannot agree that 12 0.98.2011, § 19 is unconstitutional as a special law. The majority opinion asserts that this statute "creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors." Oklahoma's case law already recognizes such a "subclass" of tort law, and that is "malpractice." The rule where medical malpractice against a physician is alleged, whether it is for failure to properly diagnose or treat a patient, is that the physician's negligence must ordinarily be established by expert testimony. Smith v. Hines, 2011 OK 51, ¶ 14 , 261 P.3d 1129, 1133 ; Harder v. F.C. Clinton, Inc., 1997 OK 187 , ¶ 14, n. 30, 948 P.2d 298, *788 305, n. 30 ; Benson v. Tkack, 2001 OK CIV APP 100, ¶ 10 , 80 P.3d 402 , 404. The statute merely requires an affidavit at the time of filing. Is it reasonable to require expert testimony in a malpractice case, but forbid the legislature from requiring that an expert submit an affidavit at the front end of a lawsuit? I do not believe it is.
2 The difference between a standard negligence case and professional malpractice is recognized even in the business law books studied by undergraduates and MBA students.
"If an individual has knowledge or skill superior to that of an ordinary person, the individual's conduct must be consistent with that status. Professionals-including physicians, dentists, architects, engineers, accountants, and lawyers, among others-are required to have a standard minimum level of special knowledge and ability. Therefore, in determining what constitutes reasonable care in the case of professionals, the law takes their training and expertise into account. Thus, an accountant's conduct is judged not by the reasonable person standard, but by the reasonable accountant standard." Kenneth W. Clark-son, Roger LeRoy Miller & Frank B. Cross, Business Law Text and Cases 189 (12th ed. 2012).
13 Georgia's statute requiring an affidavit is not identical to Oklahoma's statute. However, the reasoning of the Supreme Court of Georgia is pertinent to the construction of Oklahoma's statute. Georgia's statute also requires an affidavit from an expert to be filed with the complaint for professional negligence. Its supreme court recognized that the statute itself did not impose a cost or fee for filing an expert affidavit. Neither does § 19. In addressing a due process argument, Georgia's court observed: "The 'costs' appellants object to are created by private actors, not any state actor. Since no state actor has exacted the harm of which appellants complain, the statute does not violate the right to due process." Walker v. Cromartie, 287 Ga. 511, 512 , 696 S.E.2d 654, 656 (2010). If this Court reasons that the legislature's requirement of an expert affidavit is financially burdensome, is it somehow less burdensome to require an expert to testify to the negligence of the defendant during the trial stage? Case law requires such expert testimony. Surely it is clear that the cost of an expert affidavit is less than the cost of actual expert testimony, both of which are presently required, one by the legislature and the other by this Court.
{4 The majority protests that court costs have reached the tipping point and can go no higher. The legislature has provided, through the statute, for a simple exemption that may be signed by plaintiffs to express to the court their inability to pay for the § 19 affidavit. The Supreme Court is very liberal and experienced in allowing indigent petitions. I see no reason for this Court to fail to recognize an indigent affidavit for professional cases.
I5 Accordingly, I dissent.