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Date: 09-08-2012

Case Style: Rhonda Lambert v. Steven C. Anagnost, M.D.

Case Number: CJ-2012-3157

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Richard A. Shallcross

Defendant's Attorney: Amy Ellen Kempfert, Sean H. McKee and Steven W. Simcoe for Anagnost and Spine and Orthopedic Institute

Brandon C. Whitworth and Elizabeth K. Hall for AHS Hillcrest Medical Center, LLC

Description: Rhonda Lambert and Jimmy Lambert sued Steven C. Anagnost, M.D., Spine and Orthopedic Institute and AHS Hillcrst Medical Center, LLC on medical negligence (medical malpractice) theories claiming:

1. Plaintiffs are residents and citizens of the City of Tulsa, Tulsa County, State of Oklahoma.

2. Defendant THE SPINE AND ORTHOPEDIC INSTITUTE( “SOI”) is a domestic business entity with its principal place of business in Tulsa, Oklahoma.

3. Defendant STEVEN C. ANAGNOST, M.D. is and was at all times relevant hereto, and currently is, a duly licensed physician and resident of the State of Oklahoma, and further was a principal, agent, employee, and/or servant of Defendant 501 and was at all times acting within the scope of his relationship with SOI.

4. That defendants AHS HILLCREST MEDICAL CENTER LLC, and HILLCREST HEALTHCARE SYSTEM are business entities with principal places of business in Tulsa, Oklahoma.

5. The acts and/or omissions giving rise to this action occurred in Tulsa, Oklahoma.

6. That beginning approximately December 18, 2009, Plaintiff Rhonda Lambert was a patient of and the recipient of professional medical services from these defendants including spine surgery performed by ANAGNOST at the HILLCREST defendants’ medical center on June 16, 2010.

7. Defendants were negligent in the care and treatment rendered to Rhonda Lambert, and further the conduct of defendants constituted a breach of the applicable standard of care and as a direct result Rhonda Lambert sustained injuries, pain, suffering and resulting damages.

8. That defendant SQl is responsible for the acts and/or omissions of its respective principals, agents, employees, and/or servants including, but not limited to, defendant ANAGNOST, which caused or contributed to Rhonda Lambert’s injuries.

9. That the HILLCRES1’ defendants were negligent in allowing defendant ANAGNOST to maintain surgical privileges at their medical center and in allowing him to perform spine surgery upon RHONDA LAMBERT.

10. That the HILLCREST defendants are responsible for the acts and/or omissions of defendant ANAGNOST, which caused or contributed to Rhonda Lambert’s injuries.

11. That as a direct result of defendants’ negligence, the Plaintiff Rhonda Lambert has sustained injuries, pain, suffering, disabilities, and limitations and has incurred medical and consequential expenses and damages in excess of the sum of $75,000.00.

12. That as a result of the injuries sustained by his wife, Plaintiff Jimmy Lambert has sustained loss/diminishment of his wife’s services, companionship and consortium all to his damage and in an amount in excess of $75,000.00.

WHEREFORE, Plaintiffs pray for judgment against the responsible Defendant(s) for all damages to which they are entitled, and which they allege to be in excess of $75,000.00, together with costs, interest, and such other relief as the Court deems appropriate.


AHA Hillcrest Medical Center answered as follows:

COMES NOW the specially appearing Defendant, AHS Hillcrest Medical Center, LLC (“Hillcrest” or “the Hospital”), by and through its counsel of record of the law firm of Rodolf & Todd, and submits this Special Entry of Appearance and Motion to Dismiss. The specially appearing Defendant specifically reserves its right to assert all available defenses, including, but not limited to, all defenses set forth in Title 12 O.S. § 2012. See Young v. Walton, 1991 OK 20, 807 P.2d 248. In support hereof, Defendant would show the Court as follows:

PLAINTIFF’S LAWSUIT SHOULD BE DISMISSED FOR FAILURE TO COMPLY WITH TITLE 12 O.S. 19

Plaintiffs’ lawsuit is premised on allegations of medical negligence. See Pl.’s Pet., in toto, attached as Exhibit “A.” Clearly, the Plaintiffs have sued Hillcrest for professional negligence in connection with the provision of medical and/or healthcare services. Id. Pursuant to Title 12 O.S. § 19, Plaintiffs were required to attach to their Petition an affidavit attesting that, among other things, their claims have been reviewed by a qualified expert, that they have obtained written opinions from said expert and that the claims are “meritorious and based on good cause.” To wit:

A. 1. In any civil action for professional negligence, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that:

a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert,

b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the determination of the expert that, based upon a review of the available material including, but not limited to, applicable medical records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant against whom the action is brought constituted professional negligence, and

c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is meritorious and based on good cause.

2. If the civil action for professional negligence is filed:

a. without an affidavit being attached to the petition, as required in paragraph 1 of this subsection, and

b. no extension of time is subsequently granted by the court, pursuant to subsection B of this section, the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling.

See Title 12 O.S. § 19(A)(1)(2). Lawsuits premised on claims of professional negligence must be accompanied by an affidavit. Id. If a lawsuit is filed without the required affidavit, Section 19 provides that “the court shall, upon motion of the defendant, dismiss the action without prejudice to its refihing.” Id. at § 1 9(A)(2)(a)-(b) (emphasis added).

It is indisputable that Plaintiffs have not attached an expert affidavit to their Petition as required by law, nor have they been granted an extension of time to do so by the Court. See Pl.’s Pet., in toto, attached as Exhibit “A.” See also Docket for CJ-2012- 3157, attached as Exhibit “B.” Cf Title 12 O.S. § 19, supra.

Further, this Motion is being pursued at this stage of the litigation pursuant to the Oklahoma Supreme Court’s recent ruling in Richardson, Richardson and Boudreaux, PLLC v. Morrissey, 2012 OK 52, P.3d , which held, “...a defendant’s motion to dismiss pursuant to 12 O.S. 2011 § 19 must be filed before pleading by that defendant, f further pleading is allowed.” (Emphasis in original.) In analyzing the applicability of a Section 19 motion to dismiss, the Court found that the trial court abused its discretion when it denied the defendant’s motion to dismiss Plaintiff’s petition based on noncompliance with the affidavit requirements of Title 12 O.S. § 19. Id. Consequently, and in accordance with Title 12 O.S. § 19(A)(2)(a)-(b), Plaintiffs’ cause of action should be dismissed forthwith. The Defendant respectfully requests as much.

WHEREFORE, premises considered, the specially appearing Defendant, AHS Hillcrest Medical Center, LLC, respectfully requests this Court to GRANT its Motion to Dismiss, and for all other relief the Court deems just and equitable.

Spine and Orthopedic Institute filed a special entry of appearance and motion to dismiss stating:

COMES NOW Defendant The Spine And Orthopedic Institute, and specially entefl its appearance in this matter pursuant to the provisions of Young v. Walton, 1 991 OK.25J, 807 P2d 248, 249-50 (OkIa. 1991) and First Texas Savings Asw ‘n v. Bernsen, 1996 OK CIV AP 24, 921 P.2d 1293, 1296 (Okia. 1996), and specifically reserves the right to assert all defenses availabl& by law, including the defenses specifically identified by 12 0.5. § 2012B. With this Motion, this Defendant hereby moves to dismiss the above-styled action pursuant to Title 12 OS. § 19.

In support of this Motion, this Defendant shows the Court as follows:

1. Plaintiffs filed this medical malpractice action on June 18, 2012 alleging medical negligence against this Defendant. See Plaintiffs’ Petition.

2. Title 12 0.5. § 19 provides in part:

A. 1. In any civil action for professional negligence. . . the plaintiff shall attach to the petition an affidavit attesting that:

a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert,

b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the determination of the expert that, based upon a review of the available material including, but not limited to, applicable medical records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant against whom the action is brought constituted professional negligence, and

c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is meritorious and based on good cause.

2. If the civil action for professional negligence is filed:

a. without an affidavit being attached to the petition, as required in paragraph 1 of this subsection, and

b. no extension of time is subsequently granted by the court, pursuant to subsection B of this section, the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling. Okla. Stat. tit. 12 § 19 (emphasis added).

3. Because this is a medical liability and professional negligence action brought against this Defendant, 12 OS. § 19 required that Plaintiffs attach an affidavit to their Petition attesting that a qualified expert had been consulted, and that the expert had made a determination that the alleged acts or omissions constituted professional negligence. Id.

4. Plaintiffs failed to attach the affidavit as statutorily required.

5. As Plaintiffs have failed to comply with the applicable statute, this Defendant should be dismissed from this case without prejudice at this time.

WHEREFORE, premises considered, Defendant The Spine And Orthopedic Institute respectfluly requests that this Court enter an Order dismissing it from this case without prejudice, and granting it any other relief which the Court deems just and appropriate.

Plaintiff responded to Defendants' motion to dismiss stating:

The plaintiffs, Rhonda and Jimmy Lambert, respond to the defendants’ Steven Anagnost M.D. (“Anagnost”); The Spine and Orthopedic Institute (“SOT”); and AHS Hillcrest Medical Center (“ARS”) dismissal motions. The dismissal motions seek the enforcement of a statute (12 O.S.(2009) §19) that is constitutionally infirm, and therefore unenforceable.

Facts

1) Plaintiffs are residents and citizens of Tulsa County.

2) Defendant SOl is a domestic business entity with its principal place of business in Tulsa.

3) Defendant ANAGNOST is and was at all times relevant hereto, and currently is, a duly licensed physician and resident of the State of Oklahoma, and further was a principal, agent, employee, and/or servant of Defendant SOT and was at all times acting within the scope of his relationship with SOT.

4) That defendant AHS is a business entity with principal places of business in Tulsa.

5) The acts and/or omissions giving rise to this action occurred in Tulsa.

6) That beginning approximately December 18, 2009, Plaintiff Rhonda Lambert was a patient of and the recipient of professional medical services from these defendants including spine surgery performed by ANAGNOST at AHS on June 16, 2010.

7) Defendants were negligent in the care and treatment rendered to Rhonda Lambert, and further the conduct of defendants constituted a breach of the applicable standard of care and as a direct result Rhonda Lambert sustained injuries, pain, suffering and resulting damages.

8) That defendant SOT is responsible for the acts and/or omissions of its respective principals, agents, employees, and/or servants including, but not limited to, defendant ANAGNOST, which caused or contributed to Rhonda Lambert’s injuries.

9) That AHS was negligent in allowing defendant ANAGNOST to maintain surgical privileges at their medical center and in allowing him to perform spine surgery upon RHONDA

LAMBERT.

10) That AIlS is responsible for the acts and/or omissions of defendant ANAGNOST, which caused or contributed to Rhonda Lambert’s injuries.

11) That as a direct result of the defendants’ negligence, the Plaintiff Rhonda Lambert has sustained injuries, pain, suffering, disabilities, and limitations and has incurred medical and consequential expenses and damages in excess of the sum of $75,000.00.

12) That as a result of the injuries sustained by his wife, Plaintiff Jimmy Lambert has sustained loss/diminishment of his wife’s services, companionship and consortium all to his damage and in an amount in excess of $75,000.00. Defendants’ Motion to Dismiss Lc based upon plaint jff’s noncompliance with 12 O.S. (2009) 19. The statute is an unconstitutional special law prohibited by Article 5, 46 of the Oklahoma Constitution.

This Court should first recall some of the relevant Oklahoma legislative history regarding “tort reform” that led to the enactment of 12 O.S.(2009) §19.

In 2003, health care lobbyists and liability insurance company lobbyists pressured the Oklahoma Legislature to enact “tort reform.” The result was the euphemistically titled “Affordable Access to Health Care Act” (“AATHCA”), 63 O.S. (2003) §1-1708.lA, et seq.

Included within the AATHCA at subsection “E” thereof was the requirement laid upon all future medical negligence plaintiffs that they procure the written opinion of a qualified expert regarding departures from the standard-of-care as a condition precedent to the filing of a Petition in the District Courts.

The subject statute (63 O.S.(2003) §1708.lE) was challenged in 2006 by Monica Zeier before the Oklahoma Supreme Court, where it was stricken as an unconstitutional “special law.” (Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, 865), and because the “affidavit of merit” requirement created an unconstitutional monetary barrier to Court access (Zeier at 869). In an 8- 1 decision, the Court gave a thrashing to the special interest groups that had benefited from the passage of this ill-considered statute. See Zeier at 869: (“.. .the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low- income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price.”); Zeier at 869: (“Rather than reducing problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’ claims based solely on procedural, rather than substantive, grounds”); Zeler at 869-70 (“Another unanticipated result of statutes similar to Oklahoma’s scheme has been the creation of a windfall for insurance companies who benefit from the decreased number of cases they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians. These companies happily pay less out in tort-reform States while continuing to collect higher premiums from doctors and encouraging the public to blame the victim or (plaintiffs) attorney for the filing of frivolous lawsuits”).

In 2008, the Oklahoma Senate went majority Republican for the first time since statehood. The medical care and insurance lobbyists pressed the Republican majorities in the House and the Senate to enact a new “affidavit of merit” statute that might not run afoul of the Constitution. The legislative result is 12 O.S.(2009) §19. The new statute suffers from each of the constitutional infirmities that the Supreme Court found to exist in the old statute — 63 OS. (2003) §l-1708.1E.

The Legislature apparently read the Supreme Court’s Zeir opinion, and concluded that constitutional infirmity would be cured by enlarging the group of prospective plaintiffs who must suffer the requirement of procuring a pre-suit “affidavit of merit.” 12 O.S.(2009) §19(A)(I) states that the scope of the new “affidavit of merit” statute is “any civil action for professional negligence,” unlike the striken statute that pertained only to “any medical liability action.” Plaintiffs submit that 12 O.S.(2009) §19 is unconstitutional because it is in derogation of Article 5, §46 of the Oklahoma Constitution, in that it is a special law affecting only plaintiffs who claim professional malpractice rather than all individuals seeking redress for negligent acts.

Article 5, §46 of the Oklahoma Constitution provides that the Legislature may not pass “special laws” affecting certain subjects. The constitutional provision contains twenty-eight areas where general laws shall always be applicable. Included within the list of categories is a prohibition against regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the Courts. The language utilized in Article 5, §46 is a mandatory prohibition against special laws. Zeier at 865. It provides in pertinent part:

The legislature shall not except as otherwise provided in this Constitution, pass any local or special law authorizing:... Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts..

The constitutional assessment that is required by the Lamberts’ constitutional challenge was described this way by the Oklahoma Supreme Court in Reynolds v Porter, 1988 OK 88, 760 P.2d 816:

“Under §46 our Constitutional review of a statute stops with the first prong: Is the statute a special or a general law? If the statute is special, §46 absolutely and unequivocally prohibits its passage by the legislature... in other words, in §46 our constitutional fathers isolated and set aside for protection against legislative tampering subjects to which general law must always be tailored... In a §46 attack, the only issue to be resolved is whether a statute upon a subject enumerated in that section targets for different treatment less than an entire class of similarly situated persons or things” Reynolds at 822-823.

In the statute now at issue before this Court — 12 O.S.(2009) §19 — the Legislature attempts a regulation of Court procedures and jurisdiction and evidentiary rules in the District Courts. The common law class of plaintiffs implicated by 12 O.S,(2009) §19 comprises all actionable tort claims. The class includes not only professional malpractice claimants, but also all other tort plaintiffs. There is no negligent tort claim that is affected by the “Affidavit of Merit” requirement, other than professional malpractice claims. In striking down 63 O.S.(2003) § 1-1708.1 (E) for its violation of Article 5, §46, the Zeier Court wrote: “The terms of Article 5, §46 command that this Court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things. In a special law attack under Article 5, §46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things. The test is whether the provisions fit with the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the §46 interdiction of special law has been offended.” Zeier at 867.

The “affidavit of merit” requirement immediately divides tort victims alleging negligence into two classes — those who pursue a cause of action in negligence generally and those who name professionals as defendants. Plaintiffs alleging anything other than professional negligence need only file a petition giving fair notice of the plaintiff’s claim, while plaintiffs alleging professional negligence must obtain an expert opinion that their cause is meritorious as a pre requisite to pursuing suit, on the pain and penalty of dismissal. 12 O.S.(2009) §19.

A statute is a “special law” where a part of an entire class of similarly affected persons is separated for different treatment. Just as the discovery rule considered in Reynolds suffered from under inclusiveness, and just as the affidavit of merit requirement in Zeier suffered from under inclusiveness, so too does 12 0.5(2009) §19- it sets aside a sub-set of negligence plaintiffs for different procedural and evidentiary treatment based on the type of action they pursue. The professional affidavit requirement of 12 0.5. §19 has no counterpart in the general law of tort claims. Only professional negligence claimants are burdened with the necessity of obtaining a professional opinion to support the filing of a petition in the District Court. Furthermore, only professional malpractice defendants, and not negligence defendants generally, are granted what is a mandatory discovery privilege before a petition for recovery will even be heard. This is precisely the vice that the Oklahoma Constitution and the Supreme Court have long guarded against — the granting of preference to some and the denial of equality to a class.

By mandating uniformity of procedure, the terms of Article 5, §46 command that all citizens of the State shall have equal access to legal institutions. Professional malpractice plaintiffs constitute nothing more than a subset of parties pursuing a cause under negligence standards. Because 12 0.S. § 19 impacts less than an entire class of similarly situated claimants — i.e., professional malpractice claimants are severed from all other tort victims — the statute is under inclusive and “special.” As such, the statute violates the absolute and unequivocal prohibition of the Oklahoma Constitution, Article 5, §46 against the passing of special laws regulating the practice or jurisdiction of, or changing the rules of evidence in, judicial proceedings or inquiries before the Courts. Zeier at 868-869.

The constitutional violation of Article 5, §46 that the Zeier Court wrote about respecting 63 O.S.(2003) §1-1708.1E was not cured by the enactment of 12 O.S.(2009) §19. The new statute suffers from the same constitutional transgressions as the old. The statute should be deemed unconstitutional by this Court, and the defendants’ dismissal motions be overruled.

Conclusion

This Court has recently held that 12 O.S.(2009) § 19>A? is unconstitutional. See Gilbert v. Southcrest Hospital, Case No CJ-20l0-6625, Order dated June 8, 2011. (a rotator cuff injury occurring during implantation of cardiac pace-maker — invoking the res ipsa doctrine), and Jill Norris v. Patrick Han MD., Case No. CJ-201 1-5242, Order dated 10/18/11 (ciberknife mismanagement by neurosurgeon or neuroradiologist or both caused permanent facial nerve damage — invoking res ipsa doctrine); and Elliott v. Dunitz, et al, Case No CJ-201 1-04392, Order dated 1/12/12 (foreign object left in knee following scope of knee — invoking res ipsa doctrine). This Court should similarly overrule the instant “Motion to Dismiss” by finding 12 O.S.(2009) § 19 to be constitutionally infirm.

Plaintiff then moved the Court to give notice to the Oklahoma Attorney General of Plaintiff's challenge to 12 O.S. Sec. 19.

Outcome: The Plaintiffs dismiss its petition as respects the defendant Hillcrest Healthcare System without Prejudice. 12 O.S. §684.1.

SELLERS, JEFFERSON D.: PLAINTIFFS HAVING RAISED THE CONSTITUTIONALITY OF 12 O.S. (2009) SEC. 19, IN THEIR RESPONSE TO DEFENDANTS' MOTION TO DISMISS, THE SAME MOTION IS HEREBY SET FOR HEARING SEPTEMBER 27, 2012, AT 10 O'CLOCK A.M. TO ALLOW FOR NOTICE TO THE OKLAHOMA ATTORNEY GENERAL, E. SCOTT PRUITT. REMAINING DEFENDANTS ARE ORDERED TO FILE ANY REPLY TO PLAINTIFFS' RESPONSE TO THE MOTION TO DISMISS BY AUGUST 29, 2012. THEREAFTER, PLAINTIFFS SHALL PREPARE A PROPOSED CERTIFICATION TO THE CORRECT OFFICE HOLDER, E. SCOTT PRUITT, AND SHALL PRESENT THE SAME FOR THE COURT'S SIGNATURE ALONG WITH COPIES OF THE MOTION AND BRIEFS, AND SHALL MAIL THE SAME TO THE ATTORNEY GENERAL AND MAKE PROOF THEREOF TO THE COURT FILE IN ADVANCE OF THE HEARING. NOTICE TO: AMY KEMPFERT, SEAN MCKEE, STEVE SIMCOE, BRANDON WHITWORTH, RICHARD SHALLCROSS

Plaintiff's Experts:

Defendant's Experts:

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