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John v. Saint Francis Hospital, Inc.

Supreme Court of Oklahoma

October 24, 2017

Johnson John, Respondent,
Saint Francis Hospital, Inc., Neurological Surgery, Inc. and Douglas Koontz, M.D., Petitioners.


          Timothy G. Best, Matthew B. Free, Travis J. Kirk, BEST & SHARP, Mike Barkley, Teak H. Hull, Jr., THE BARKLEY LAW FIRM, Tulsa, Oklahoma, for Petitioner.

          Ronald E. Durbin, II, THE DURBIN LAW FIRM, Tulsa, Oklahoma, for Respondent.

          Mithun Mansinghani, Solicitor General, Attorney General's Office, Oklahoma City, Oklahoma.

          COLBERT, J.

         ¶0 Patient filed medical negligence action against surgeon who performed decompressive laminectomies. Surgeon filed a motion to dismiss for failure to attach an affidavit of merit or- -in the alternative- -request an indigency exception. The District Court of Tulsa County, Honorable Jefferson Sellers, found that the affidavit requirement in Okla. Stat. tit. 12, § 19.1, unconstitutionally imposed substantial and impermissible impediments on the patient's right to access the courts and certified its ruling. Surgeon sought certiorari review of the certified interlocutory order which this Court granted.

         ¶1 The dispositive issue on appeal is whether the thrice incarnated affidavit of merit requirement found in Okla. Stat. tit. 12, § 19.1 (Supp. 2013), is unconstitutional. In the wake of Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, its sequel Wall v. Marouk, 2013 OK 36, 302 P.3d 775, and upon reexamination of the Oklahoma Constitution, the inevitable conclusion is that section 19.1 is an impermissible barrier to court access and an unconstitutional special law. Section 19.1 is stricken.



         ¶2 On October 30, 2012, Saint Francis Hospital, Inc., Neurological Surgery, Inc., and Douglas Koontz, M.D. (collectively Petitioners) performed decompressive laminectomies of Respondent's, Johnson John (Patient), spine at the C2-3, C3-4, C4-5, C5-6 and C6-7 regions. After the operation, Patient allegedly became partially paralyzed, suffered constant pain, was hospitalized for four months and submitted to additional medical treatment.

         ¶3 Patient filed this suit against Appellants on May 31, 2016, alleging negligence, gross negligence, medical malpractice and seeking punitive damages for Appellants' failure to render reasonable medical care, breach of the duty of care owed and Patient's resulting injuries. In commencing the action, Patient failed to attach an affidavit of merit to the Petition or otherwise comply with Okla. Stat. tit. 12, § 19.1. [1] That is, Patient did not attach an affidavit attesting that Patient: (1) consulted and reviewed the facts of the claim with a qualified expert, (2) had obtained a written opinion from a qualified expert which included a determination that a reasonable interpretation of the facts support a finding that defendants' actions or omissions constituted negligence and (3) had concluded, on the basis of the review and consultation with the qualified expert, that the claim was meritorious and based on good cause. See id.

         ¶4 On June 23, 2016, Appellants, in lieu of answer, filed their respective motions to dismiss and asserted, among other things, Patient's failure to include the statutorily required affidavit of merit or, in the alternative, obtain a statutorily recognized exception. On July 8, 2016, Patient averred that the statutory directive unconstitutionally restrained a litigant's right to access the courts and was an unconstitutional special law. On August 5, 2016, the district court provided notice to the Attorney General's office concerning the challenged statute. As intervenor, the Attorney General filed its notice to the court and supplemental authority on October 11, 2016, essentially urging the district court to enforce the affidavit requirements.

         ¶5 After hearing arguments and reviewing the parties' submissions, the district court overruled Appellants' motions to dismiss. In doing so, the district court rejected Patient's special law challenge but determined that,

section 19.1 unconstitutionally imposes a substantial and impermissible impediment to access to the courts. This barrier is unconstitutional regardless of the financial worth of a litigant and is not cured by exercising the indigent from this burden.

         ¶6 The district court certified its ruling pursuant to Okla. Stat. tit. 12, § 952(b)(3), [2] finding that its order affected a substantial portion of the underlying action and materially advanced the ultimate determination of the litigation. [3] The district court then acknowledged the inconsistent application of section 19.1 among the district courts statewide; and further urged this Court's immediate review. [4] Likewise, the district court acknowledged section 19.1's potentially sweeping stroke on civil negligence actions requiring expert testimony and this Court's response declaring similar provisions unconstitutional on two separate occasions.

         ¶7 Appellants requested a stay of the district court proceedings pending the outcome of this appeal. That request, however, was denied as section 19.1 was unavailable for application to Patient's case. Appellants sought review, which this Court previously granted.



         ¶8 At issue is the constitutionality and application of Okla. Stat. tit. 12, § 19.1. A statute's constitutional validity, construction and application are legal questions this Court reviews de novo. See Gilbert v. Sec. Fin. Corp. of Okla., Inc., 2006 OK 58, ¶ 2, 152 P.3d 165, 171. In doing so, this Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

         ¶9 Determining the constitutionality of section 19.1 is this Court's sole prerogative. Douglas v. Cox Ret. Prop., Inc., 2013 OK 37, ¶ 3, 302 P.3d 789. The policy rational, propriety or desirability of section 19.1, however, is not. Id.



         A. Prior Enactments and Decisions

         ¶10 At the outset, this Court acknowledges that section 19.1 is the Legislature's third attempt to mandate an affidavit requirement as an indispensable step in the pleading process for certain civil actions. Pursuant to statute, adjudication cannot occur if the plaintiff fails to attach the requisite affidavit to the petition. The first constitutional challenge to the affidavit requirement came in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861. There, the law singled out medical negligence actions from the garden-variety negligence class and imposed stricter pleading requirements only applicable to actions naming medical professionals as defendants. Id. at ¶ 14, 152 P.3d at 867; see also Okla. Stat. tit. 63, §1-1708.1E (Supp. 2003) (repealed by 2009 Okla. Sess. Laws, § 87, c. 228). As a precursor to filing a medical malpractice action, a plaintiff had to 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.

Zeier, ¶ 8, 152 P.3d at 865. Such requirements were a step-back from and altered the more streamlined Oklahoma Pleading Code the Legislature enacted in 1984. Okla. Stat. tit. 12, § 2008. Contrary to the enactment, the Code does not require a plaintiff to set out detailed facts upon which a claim is based. Rather, a plaintiff was merely required to provide "fair notice of the [...] claim and the grounds upon which it rests." Zeier, ¶ 14, 152 P.3d at 867. Oklahoma's adoption of the Code is consistent with this State's constitutional directive mandating uniform procedures for all citizens of the state and equal access to legal institutions. Id. ¶ 18, 152 P.3d at 868. Without question, the affidavit requirement targeted less than an entire class of similarity situated persons or things for different treatment. Moreover, for those plaintiffs alleging res ipsa loquitor - -which negated the need for expert testimony to prove the cause- -a third class emerged. Id. ¶ 16, 152 P.3d at 867-68. The only issue to be resolved then, was whether the statute fell within the absolute and unequivocal prohibition against the passing of special laws listed in Article V, section 46 of the Constitution. Id. ¶ 7, 152 P.3d at 865. We held that it did as the statute was a special law "regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts." Id. ¶ 18, 152 P.3d at 868.

         ¶11 This Court concluded further that the mandated medical affidavit created an unconstitutional monetary barrier to a plaintiff's guaranteed right of court access under Article II, section 6 of the Oklahoma Constitution. Id. ¶ 26, 152 P.3d at 872-73. The statute not only singled out medical malpractice plaintiffs; but, also placed the plaintiff's financial status directly at issue. Id. A plaintiff's right to adjudication became predicated upon the plaintiff's ability or inability to procure an affidavit and pay for a pre-petition medical opinion. Id. So while general negligence plaintiffs enjoyed a direct path to the courthouse, medical negligence plaintiffs were statutorily detoured. See id. ¶ 32, 152 P.3d at 874.

         ¶12 In 2013, this Court reexamined the incarnated affidavit requirements in Wall v. Marouk, 2013 OK 36, 302 P.3d 775. The Legislature, in a second attempt, enacted an affidavit requirement exclusively for all professional negligence actions. See HB 1603, c. 228, § 2, eff. November 1, 2009.

         ¶13 In construing the statute's constitutionality, this Court determined, again, that the provision created a "new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors." Wall, ¶ 6, 302 P.3d at 779. Like its predecessor in Zeier, victims of professional misconduct bore an enhanced burden of obtaining pre-petition expert review and procuring an expert report as a condition precedent to court access. We said:

[T]he distillate of art. 5, §46 is that the Legislature shall not pass a special law regulating the practice of judicial proceedings before the courts or any other tribunal. This is precisely the situation we face. Title 12 O.S. 2011 §19 creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors. In doing so, it places an out of the ordinary enhanced burden on these subgroups to access the courts by requiring victims of professional misconduct to obtain expert review in the form of an affidavit of merit prior to proceeding, and it requires the victims of professional misconduct to pay the cost of expert review.

Id. As a special law, the provision unconstitutionally regulated the practice of judicial proceedings before the courts. Id. And, the incarnated pre-petition requirements represented a step-back from Oklahoma's streamlined notice pleading ...

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