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Date: 12-19-2006

Case Style:

Monica Belinda Zeier v. Zimmer, Inc. and Theron S. Nichols, M.D.

Case Number: 2006 OK 98

Judge: Watt

Court: Supreme Court of Oklahoma on appeal from the District Court, Okmulgee County, Oklahoma

Plaintiff's Attorney: John B. Nicks, Thomas A. Layon, Layon, Cronin, Kaiser & Nicks P.A., Tulsa, Oklahoma, for Plaintiff/Appellant, Monica Belinda Zeier,

Defendant's Attorney: Jeffrey A. Glendening, James A. Higgins, John D. Bogatko, The Glendening Law Firm, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee, Theron S. Nichols, M.D.
Harvey D. Ellis, Crowe & Dunlevy, Oklahoma City, OK, for amicus curiae, Oklahoma State Medical Association.


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1 A single dispositive issue is presented on appeal: whether the affidavit of merit1 requirement of 63 O.S. Supp. 2003 1-1708.1E2 is constitutional. We determine that the statute is an unconstitutional special law prohibited by the Oklahoma Constitution art. 5, 46.3 Furthermore, we hold that the requirement that a medical malpractice claimant obtain a professional's opinion that the cause is meritorious at a cost of between $500.00 and $5,000.004 creates an unconstitutional monetary barrier to court access guaranteed by art. 2, 6 of the Oklahoma Constitution.5


2 On August 9, 2004, the defendant/appellee, Theron S. Nichols (Nichols/physician/doctor), performed knee replacement surgery on the plaintiff/appellant, Monica Belinda Zeier (Zeier/patient), implanting a device manufactured by Zimmer, Inc. (Zimmer/manufacturer). Zeier filed suit against the physician and the manufacturer on May 5, 2005, alleging negligence, manufacturer's products liability and breach of warranty. The petition provided that: 1) the wrong knee replacement parts were utilized during surgery, 2) the device was defective in design; and 3) the instrument was in the exclusive control of Nichols and Zimmer at all relevant times.

3 The patient neither attached an affidavit of medical negligence, as required by 63 O.S. Supp. 2003 1-1708 .1E, nor did Zeier request an extension to comply with the statutory requirement. On June 1, 2005, the doctor filed a motion to dismiss for the patient's failure to provide the medical negligence affidavit. Zeier did not respond and Nichols filed a motion to deem the cause confessed which was mailed to the patient on June 29, 2005. On the same date, Zeier responded to the motion to dismiss asserting that the petition stated a cause of action for negligence under the principle of res ipsa loquitur.6 Furthermore, she argued that the affidavit requirement of 63 O.S. Supp. 2003 1-1708 .1E constituted an unconstitutional special law under the Oklahoma Constitution art. 5, 46 and 597 and that it violated the constitutional guarantee of access to the courts contained in art. 2, 6 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution.8

4 The trial court entered a final order of dismissal without prejudice to refiling on August 2, 2005. On August 25, 2005, Zeier filed her petition in error and motion to retain. The motion was granted on September 26, 2005. On October 25, 2005, the parties were ordered to file briefs. The order setting the briefing schedule also notified the Attorney General of the filing of the appeal attacking the constitutionality of a state statute. The order informed the Attorney General9 and any interested amici curiae10 that, if briefs were filed in the cause, they would be held to the same briefing schedule as the parties. The Attorney General declined briefing of the issues. The parties and the amicus curiae, Oklahoma State Medical Association (Association), filed their briefs-in-chief on November 14 and 15, 2005. The briefing cycle was completed on December 5, 2005, with the filing of the physician's reply.


5 a. Title 63 O.S. Supp. 2003 1-1708 .1E is an unconstitutional
special law prohibited by art. 5, 46 of the
Oklahoma Constitution.

6 Zeier contends that 63 O.S. Supp. 2003 1-1708.1E11 violates art. 5, 4612 in that it is a special law affecting only medical malpractice plaintiffs rather than all individuals seeking redress for negligent acts. The doctor insists that the statute is a general law encompassing all of the class -- medical providers -- and that it is general in its application. We disagree with the doctor.

7 Art. 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 art. 5, 46 is a mandatory prohibition13 against special laws -- 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 . . ." [Emphasis provided.]

8 Title 63 O.S. Supp. 2003 1-1708 .1E requires that a plaintiff alleging medical malpractice attach an affidavit to the petition stating that the plaintiff: 1) has consulted with a qualified expert; 2) has obtained a written opinion from a qualified expert that the facts presented constitute professional negligence; and 3) has determined, on the basis of the expert's opinion, that the malpractice claim is meritorious and based on good cause. Plaintiffs may petition the trial court for an extension for filing the affidavit of merit not to exceed ninety days. The request must be accompanied by a showing of good cause. Although the defendant may obtain a copy of the expert's opinion, upon which the affidavit of merit is based, the opinion is inadmissable at trial and may not be utilized in discovery.

9 Both the doctor and the amicus curaie rely on McCarroll v. Doctors General Hosp., 1983 OK 54, 664 P.2d 382, for the proposition that a statute covering all health care providers is a general rather than a special law. McCarroll considered a portion of a statute which provided a two-year statute of limitations14 covering actions for damages arising from medical treatment. The McCarroll Court determined, because the limitations provision treated all health care providers equally, the Legislature had authority to group the providers into a class for special treatment. It held that the classification of health care providers for purposes of legislatively limiting the time within which an action against them could be brought was not such an arbitrary exercise of legislative discretion or lacking in a showing of good cause as to compel the Court to declare the statute unconstitutional.15

10 We considered the balance of the same statute, not originally addressed in McCarroll, five years later in Reynolds v. Porter, 1988 OK 88, 760 P.2d 816. The issue in Reynolds involved the attempt by the Legislature, in the same statutory provision considered by the McCarroll Court, to carve out of a single common-law class a subclass of actionable medical malpractice claims which could not be discovered with reasonable diligence until after three years. Essentially, by passing 73 O.S. 1981 18,16 the Legislature attempted to limit the applicability of the discovery rule in medical malpractice litigation. In Reynolds, we held that the three-year proviso in 76 O.S. 1981 18 was a special statute of limitations absolutely prohibited by art. 5, 46 of the Oklahoma Constitution. Furthermore, we recognized that the class implicated constituted all actionable tort claims -- not merely a subset of claims denominated as medical malpractice.

11 The Reynolds Court attempted to eliminate the confusion between a constitutional attack brought under art. 5, 46, containing specific legislative prohibitions, and art. 5, 59,17 allowing the Legislature to pass special laws when no general law is applicable. Reynolds explained that when an art. 5, 46 issue arises -- as we have here, there is one dispositive question which must be determined. The opinion provides:

"Under 46 our constitutional review of a statute stops with the first prong: Is the statute a special or 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." [Citations omitted. Emphasis in original.]

The 46 subject dealt with here is regulation of the practice or jurisdiction and changing the rules of evidence before the courts. Identical to the situation in Reynolds, the common law class implicated by 63 O.S. Supp. 2003 1-1708 .1E comprises all actionable tort claims. The class includes not only medical malpractice claims, but also all causes alleging negligence. No negligent tort claim, other than medical malpractice, is affected by the statutory affidavit requirement.

12 Here, we begin our review of 63 O.S. Supp. 2003 1-1708 .1E with the same deference to the statutory provision as the Court did in Reynolds. This Court recognizes that a statute is the solemn act of the Legislature.18 In construing the constitutionality of a statute, we are not authorized to consider its propriety, wisdom, or practicability as a working proposition. Those questions are clearly and definitely established by our fundamental law to a certainty as functions of the legislative department.19 We uphold the legislative enactment unless the statute is clearly, palpably and plainly inconsistent with the constitution.20 This Court has a duty to interpret statutes to make their application constitutional rather than unconstitutional.21 Nevertheless, just as it is the responsibility of the Legislature to make law and the Executive to carry those laws into effect, it is for the judiciary to interpret the same22 -- we are the independent department of government charged with the responsibility of protecting the constitution.23

13 The terms of art. 5, 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things.24 In a special laws attack under art. 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.25 The test is whether the provision fits into 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.26

14 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 medical professionals as defendants. In 1984, Oklahoma became a notice pleading state with the adoption of the Oklahoma Pleading Code.27 The pleading code does not require negligence claimants generally to have an affidavit supporting the facts alleged and the anticipated basis for the right of recovery to be filed along with the petition.28 Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff's claim and the grounds upon which it rests.29 These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition,30 while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

15 Not only does 63 O.S. Supp. 2003 1-1708 .1E divide tort victims on the basis of whether the victim is pursuing a general negligence claim or whether medical malpractice damage is alleged, it also necessitates the recognition of a subset of medical malpractice claimants relying on the legislatively codified doctrine of res ipsa loquitor for medical malpractice cases.31 This is a doctrine we may not presume the Legislature intended to repeal by implication32 in passing 63 O.S. Supp. 2003 1-1708 .1E.

16 The nature of a res ipsa loquitor claim often negates the necessity of expert testimony to prove the cause.33 Therefore, if 63 O.S. Supp. 2003 1-1708 .1E is inapplicable to such claims -- which may be brought against physicians and hospitals,34 a third subsection of the whole of negligence plaintiffs is severed. With the enactment of the affidavit of merit statute, courts are required to classify three sets of negligence plaintiffs: 1) general negligence plaintiffs -- not required to file an affidavit of merit; 2) medical malpractice plaintiffs to which the affidavit requirement of 63 O.S. Supp. 2003 1-1708 .1E applies; and 3) a third class comprised of medical malpractice plaintiffs who may not be subject to 63 O.S. Supp. 2003 1-1708 .1E because, generally, no professional opinion is required for recovery under res ipsa loquitor.

17 A statute is a "special law" where a part of an entire class of similarly affected persons is separated for different treatment.35 Just as the discovery rule considered in Reynolds suffered from underinclusiveness,36 so does 63 O.S. Supp. 2003 1-1708 .1E -- it sets aside a subset of negligence plaintiffs for different procedural and evidentiary treatment based on the type of action they pursue.37 The professional affidavit requirement of 63 O.S. Supp. 2003 1-1708 .1E has no counterpart in the general law of tort claims. Only medical malpractice claimants are burdened with the necessity of obtaining a medical opinion to support the filing of a petition in the district court. Furthermore, only medical malpractice defendants, not negligence defendants generally, are granted what is a mandated discovery privilege before a petition for recovery will ever be heard -- although the statute prohibits the admitting of the expert's opinion at trial or its use in discovery,38 it allows the defendant to obtain a copy of the same.39 This is precisely the vice that the Oklahoma Constitution and this Court have long guarded against -- the granting of preference to some and the denial of equality to a class.40

18 By mandating uniformity of procedure, the terms of art. 5, 46 command that all citizens of the state shall have equal access to legal institutions for application of the general ordinary forensic process. Medical malpractice plaintiffs constitute nothing more than a subset of parties pursuing a cause under negligence standards. Because 63 O.S. Supp. 2003 1-1708.1E41 impacts less than an entire class of similarly situated claimants -- medical malpractice claimants are severed from all tort victims with the possibility of the creation of a third class if the doctrine of res ipsa loquitor applies, the statute is underinclusive and special. We determine that the statute violates the absolute and unequivocal prohibition of the Oklahoma Constitution art. 5, 46 against the passing of special laws regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts.42

19 b. Title 63 O.S. Supp. 2003 1-1708 .1E creates an
unconstitutional monetary barrier to the access to courts
guaranteed by the Oklahoma Constitution art. 2, 6.

20 The physician and the Association assert that the affidavit requirement of to access to judicial resolution of medical malpractice cases. The patient argues that the 63 O.S. Supp. 2003 1-1708.1E43 creates no bar statutorily created requirement for the payment of professional services as a prerequisite to the filing of a petition alleging medical malpractice violates the court access guaranteed by art. 2, 6 of the Oklahoma Constitution.44 We agree with the patient.

21 The Oklahoma Legislature implemented the Affordable Access to Health Care Act (Health Care Act), 63 O.S. Supp. 2003 1-1708 .1A et seq. for the purpose of implementing reasonable, comprehensive reforms designed to improve the availability of health care services while lowering the cost of medical liability insurance and ensuring that persons with meritorious injury claims receive fair and adequate compensation.45 Although statutory schemes similar to Oklahoma's Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs.46 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.47 They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery.48 Rather than reducing the 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.49

22 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 causes they must defend but which are not required to implement post-tort reform rates decreasing the cost of medical malpractice insurance to physicians.50 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 attorney for bringing frivolous lawsuits.51

23 Courts are divided on which claims against a doctor, a hospital, or a similar health care provider will be subject to the statutes.52 Where jurisdictions have determined that affidavit of merit statutes are constitutional,53 courts have had to determine:54 whether an affidavit of merit meets statutory requirements or whether another document may be substituted as in substantial compliance with statutory directives;55 whether the affidavit requirement justifies pre-complaint discovery;56 whether a patient alleging the failure to inform concerning the use of an intrauterine device must comply with the affidavit requirement;57 whether a cause may be reopened for the late filing of an affidavit58 or to add a new count;59 whether a battery arising from a nurse's ignoring a patient's request to stop medical treatment requires a supportive expert affidavit;60 whether the expert utilized for the affidavit requirement is qualified to give an opinion based on substantial professional experience;61 whether the statute presents a procedural versus a substantive element of the claim;62 whether the amendment of a complaint will extend the required time period for filing a certificate of merit;63 whether an individual submitting an insufficient affidavit of merit must be given the opportunity to amend;64 whether the failure to file an affidavit complying with statutory requirements excuses a defendant from filing a response;65 whether affidavits of merit may be required in causes based on the doctrine of res ipsa loquitur;66 whether the affidavit constitutes a good faith effort to comply with statutory requirements;67 whether multiple affidavits will be considered together to meet the certificate of merit requirement;68 whether extensions will be allowed to cure a defective affidavit;69 what amounts to service of an affidavit of merit and whether an exception will lie to the general service requirements;70 whether there is a statutory deadline for filing a motion to dismiss if the expert report is filed untimely;71 what will constitute good faith in requesting an extension for filing the affidavit;72 whether the affidavit filed is sufficient to give the treating physician notice;73 whether allegations concerning the failure to provide a bedpan or assistance to a restroom require the filing of an affidavit of merit;74 whether an affidavit of merit which fails to meet the statutory requirements will toll the statute of limitations;75 whether the failure to provide a special certification of notary for an out-of-state affidavit until after the statute of limitations runs merits dismissal;76 and whether affidavits of merit may be considered as summary judgment evidence.77

24 This Court has not been immune to such related litigation. In Gaines v. Comanche County Medical Hosp., 2006 OK 39, 143 P.3d 203, we were required to determine whether a registered nurse was qualified to give expert testimony as to practices of nurses and the standard of care applicable to the prevention, cause, and treatment of bedsores. We aligned ourselves in Gaines with the determinations of all other jurisdictions considering the issue holding that the registered nurse's expertise made her qualified to give such expert testimony and to express her opinion.

25 The Okla. Const. art. 2, 6 provides:

"The 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." [Emphasis provided.]

The clear language of art. 2, 6 requires that the courts must be open to all on the same terms without prejudice. The framers of the Constitution intended that all individuals, without partiality, could pursue an effective remedy designed to protect their basic and fundamental rights.78 Although we recognize that the Legislature may facilitate speedy resolution of differences, legislation cannot be used to deny the constitutional guarantee of court access -- a fundamental right. Therefore, this Court strictly scrutinizes actions which deny such opportunity.79

26 Access to courts must be available to all through simple and direct means and the right must be administered in favor of justice rather than being bound by technicalities.80 Claimants may not have the fundamental right of court access withheld for nonpayment of some liability81 or conditioned on coercive collection devices.82 Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000,83 before they may proceed to have their rights adjudicated.84 In at least one instance, an affidavit of merit cost the litigant $12,000.85 A statute that so conditions one's right to litigate impermissibly denies equal protection86 and closes the court house doors to those financially incapable of obtaining a pre-petition medical opinion.87 Therefore, we determine that 63 O.S. Supp. 2003 1-1708.1E88 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, 6 of the Oklahoma Constitution.89

27 Our determination relating to court access is supported by our recent decision in Barzellone v. Presley, 2005 OK 86, 39, 126 P.3d 588 holding that the Legislature's imposition of a $349.00 jury fee did not violate the Oklahoma Constitution art. 2, 19 providing that the right to jury trial shall be and remain inviolate or the guarantee of access to courts found in the Oklahoma Constitution art. 2, 6. In Barzellone, we noted that a $349.00 fee charge appeared to be the highest challenged and upheld nationally, indicating that the fee bordered on being excessive. Furthermore, we recognized that the Legislature could not create a fiscal barrier so unreasonable as to eliminate a constitutional right.

28 Here, the Legislature has not imposed a set fee for a professional's opinion to support the affidavit of merit. Nevertheless, the statute necessarily conditions the medical malpractice plaintiff's right to judicial review on the ability to acquire an expert's opinion at a cost of between $500.00 and $5,000.0090 -- well above the borderline fee of $349.00 examined in Barzellone.

Outcome: 29 A general law encompasses all of a class. A special law is one that rests on a false or deficient classification. It creates preference and establishes inequity.91 Art. 5, 46 of the Oklahoma Constitution absolutely prohibites special laws "[r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts . . ." Not only does the requirement for providing an affidavit of merit in medical malpractice causes create a needless burden, it is redundant.92 With each filing, Oklahoma attorneys and pro se parties certify that, to the best of the person's knowledge, information, and belief, formed after a reasonable inquiry, that the cause is: not presented for an improper or frivolous purpose; the claims, defenses and other contentions are warranted by existing law or by a nonfrivolous argument for the law's extension, modification or reversal of established law; factual assertions have or are likely to have evidentiary support; and denials are warranted on the evidence or the lack thereof.93

30 Only plaintiffs alleging medical malpractice are subject to the statutory requirement of providing an affidavit of merit upon the filing of a cause. When a remedy is afforded by general law, it may not be granted to some and capriciously or arbitrarily denied to others.94 The impact of the affidavit requirement on those, like the patient here, is invidious. Zeier's cause was dismissed and her access to the trial court's portals denied for failure to obtain a medical expert's opinion which will be inadmissable as evidence at trial, useless as an evidentiary tool and which she may not need to prove her cause pled under the auspices of res ipsa loquitor. Title 63 O.S. Supp. 2003 1-1708.1E95 is an unconstitutional special law prohibited by art. 5, 4696 of the Oklahoma Constitution.

31 This Court does not correct the Legislature, nor do we take upon ourselves the responsibility of legislating by judicial fiat. However, we are compelled to apply Oklahoma's Constitution.97 It has long been the policy of the Oklahoma Constitution, the statutes and this Court to open the doors of justice to every person without distinction or discrimination for redress of wrongs and reparation for injuries.98 Although art. 2, 6 does not promise a remedy for every wrong, it requires that a complainant be given access to court when a wrong suffered is recognized in the law.99

32 Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claimants interjects a degree of arbitrariness which sabotages equal access to the courts.100 Section 1-1708.1E creates the potential for a medical expert to usurp the functions of the judiciary and the trier of fact. The requirement that a medical malpractice claimant obtain a professional's opinion that the cause is meritorious at a cost of between $500.00 and $5,000.00101 creates an unconstitutional monetary barrier to the access to courts guaranteed by art. 2, 6 of the Oklahoma Constitution.102

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