Annotate this Case

2006 OK 98
152 P.3d 861
Case Number: 102472
Decided: 12/19/2006


MONICA BELINDA ZEIER, Plaintiff/Appellant,
ZIMMER, INC. and THERON S. NICHOLS, M.D., Defendants/Appellees.


¶0 The plaintiff/appellant, Monica Belinda Zeier (Zeier/patient), filed suit against the defendant/appellee, Theron S. Nichols (Nichols/physician/doctor), alleging that the doctor's utilization of the wrong medical device in her knee-replacement procedure constituted malpractice. The patient did not attach an affidavit to the petition attesting that a qualified expert had been consulted and issued an opinion sufficient to deem the claim meritorious as required by


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


¶1 A single dispositive issue is presented on appeal: whether the affidavit of merit


¶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

¶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 General


¶5 a. Title

¶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,

¶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,

"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

¶12 Here, we begin our review of

¶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.

¶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.

¶15 Not only does

¶17 A statute is a "special law" where a part of an entire class of similarly affected persons is separated for different treatment.

¶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

¶19 b. Title

¶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.,

¶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.

¶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.

¶27 Our determination relating to court access is supported by our recent decision in Barzellone v. Presley,

¶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 $5,000.00


¶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.

¶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.

¶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.

¶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.



OPALA, J. concurs in judgment.

KAUGER, J. concurs in result.

TAYLOR, J., concurring in result:

¶1 I agree that

¶2 However, I do not join further in the majority opinion. Accordingly, I concur in result.

LAVENDER, J. dissents.


1 The terms "affidavit of merit" or "certificate of merit" are generic terms applied to a variety of special certifications - usually supplied by medical experts - that verify the legitimacy of claims involving professional standards of care. D. Kopstein, "An Unwise 'Reform' Measure," 39 May Trial 26 (2003).

2 Title 63 O.S. Supp. 2003 §1-1708.1E provides:

"A. 1. In any medical liability action, 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 expert's determination that, based upon a review of the available medical records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the health care provider against whom the action is brought constituted professional negligence, and

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

2. If a medical liability action is filed:

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

3. The written opinion from the qualified expert shall state the acts or omissions of the defendant(s) that the expert then believes constituted professional negligence and shall include reasons explaining why the acts or omissions constituted professional negligence. The written opinion from the qualified expert shall not be admissible at trial for any purpose nor shall any inquiry be permitted with regard to the written opinion for any purpose either in discovery or at trial.

B. 1. The court may, upon application of the plaintiff for good cause shown, grant the plaintiff an extension of time, not exceeding ninety (90) days after the date the petition is filed, except for good cause shown, to file in the action an affidavit attesting that the plaintiff has obtained a written opinion from a qualified expert as described in paragraph 1 of subsection A of this section.

2. If on the expiration of an extension period described in paragraph 1 of this subsection, the plaintiff has failed to file in the action an affidavit as described above, the court shall, upon motion of the defendant, unless good cause is shown for such failure, dismiss the action without prejudice to its refiling.

C. 1. Upon written request of any defendant in a medical liability action, the plaintiff shall, within ten (10) business days after receipt of such request, provide the defendant with:

a. a copy of the written opinion of a qualified expert mentioned in an affidavit filed pursuant to subsection A or B of this section, and

b. an authorization from the plaintiff in a form that complies with applicable state and federal laws, including the Health Insurance Portability and Accountability Act of 1996, for the release of any and all medical records related to the plaintiff for a period commencing five (5) years prior to the incident that is at issue in the medical liability action.

2. If the plaintiff fails to comply with paragraph 1 of this subsection, the court shall, upon motion of the defendant, unless good cause is shown for such failure, dismiss the action without prejudice to the refiling."

3 The Okla. Const. art. 5, §46 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 . . ."

4 See ¶26 and accompanying footnotes, infra.

5 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."

6 Title 76 O.S. 2001 §21 provides:

"In any action arising from negligence in the rendering of medical care, a presumption of negligence shall arise if the following foundation facts are first established:

1. The plaintiff sustained any injury;

2. Said injury was proximately caused by an instrumentality solely within the control of the defendant or defendants;

3. Such injury does not ordinarily occur under the circumstances absent negligence on the part of the defendant.

If any such fact, in the discretion of the court, requires a degree of knowledge or skill not possessed by the average person, then in that event such fact must be established by expert testimony."

Res ipsa loquitur

"Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

". . . nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws. . . ."

The Okla. Const. art. 2, §7 provides:

"No person shall be deprived of life, liberty, or property, without due process of law."

Both provisions contain an anti-discrimination component that affords protection against unreasonable or unreasoned classifications serving no important governmental objective. Davis v. Passman,

"An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; provided any action brought more than three (3) years from the date of the injury shall be limited to actual medical and surgical expenses incurred or to be incurred as a direct result of said injury, provided, however, the minority or incompetency when the cause of action arises will extend said period of limitation."

"A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain:

1. A short and plain statement of the claim showing that the pleader is entitled to relief . . ."


"A civil action is commenced by filing a petition with the court."


". . . B. PURPOSE. It is the purpose of the Affordable Access to Health Care Act to implement reasonable, comprehensive, and effective medical liability reforms designed to:

1. Improve the availability of health care services;

2. Lower the cost of medical liability insurance;

3. Ensure that persons with meritorious health care injury claims receive fair and adequate compensation; and

4. Improve the fairness and cost-effectiveness of this state's current medical liability system to resolve disputes over, and provide compensation for, medical liability."

The Association makes much of the fact that the Missouri Court in Mahoney v. Doerhoff Surgical Servs., Inc., this note, supra, upheld an affidavit of merit statute against a constitutional attack and that Mahoney was cited by this Court in Rollings v. Thermodyne Indus., Inc.,

Other courts have recognized the unconstitutionality of affidavit of merit statutes. Aldana v. Holub, 381 So. 2d 231, 237 (Fla. 1980); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 837, 12 A.L.R.4th 1 (1980); McCoy v. Western Baptist Hosp., 628 S.W.2d 634-35 (Ky.App. 1981); Arneson v. Olson, 270 N.W.2d 125, 136-37 (N.D. 1978); Graley v. Satayatham, 74 O.O.2d 316, 343 N.E.2d 832, 836 (1976); Anderson v. Assimos, 146 N.C.App 339, 553 S.E.2d 63, 68 (2001), judgment vacated in part (as relating to res ipsa loquitur)/appeal dismissed, 356 N.C. 415, 572 S.E.2d 101 (2002). See also, Hoem v. State,

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