REVIEW OF CERTIFIED INTERLOCUTORY ORDER
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.
E. Durbin, II, THE DURBIN LAW FIRM, Tulsa, Oklahoma, for
Mansinghani, Solicitor General, Attorney General's
Office, Oklahoma City, Oklahoma.
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.
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.
AND FACTUAL BACKGROUND
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.
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.  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.
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
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.
The district court certified its ruling pursuant to Okla.
Stat. tit. 12, § 952(b)(3),  finding that its order
affected a substantial portion of the underlying action and
materially advanced the ultimate determination of the
litigation.  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.  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.
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.
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
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.
Prior Enactments and Decisions
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.
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.
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.
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 ...