John v. St. Francis HospitalAnnotate this Case
In 2012, petitioners Saint Francis Hospital, Inc., Neurological Surgery, Inc., and Douglas Koontz, M.D. performed decompressive laminectomies of respondent Johnson John’s spine at the C2-3, C3-4, C4-5, C5-6 and C6-7 regions. After the operation, respondent allegedly became partially paralyzed, suffered constant pain, was hospitalized for four months and submitted to additional medical treatment. Respondent filed suit against petitioners in 2016, alleging negligence, gross negligence, medical malpractice and sought punitive damages for petitioners’ failure to render reasonable medical care, breach of the duty of care owed and respondent’s resulting injuries. In commencing the action, respondent failed to attach an affidavit of merit to the Petition or otherwise comply with Okla. Stat. tit. 12, section 19.1. In lieu of answer, petitioners filed their respective motions to dismiss and asserted, among other things, respondent’s failure to include the statutorily required affidavit of merit or, in the alternative, obtain a statutorily recognized exception. Respondent averred that the statutory directive unconstitutionally restrained a litigant's right to access the courts and was an unconstitutional special law. The district court provided notice to the Attorney General's office concerning the challenged statute. As intervenor, the Attorney General essentially urged the district court to enforce the affidavit requirements. The district court ultimately overruled petitioners’ motions to dismiss, and rejected respondent’s special law challenge. The court determined that section 19.1 unconstitutionally imposed a substantial and impermissible impediment to access to the courts, and this barrier was unconstitutional regardless of the financial worth of a litigant and was not cured by exercising the indigent from this burden. The Oklahoma Supreme Court agreed with the district court’s ruling, and found section 19.1 was an impermissible barrier to court access and an unconstitutional special law. Section 19.1 was therefore stricken.
JOHN v. SAINT FRANCIS HOSPITAL
2017 OK 81
Case Number: 115620
THE SUPREME COURT OF THE STATE OF OKLAHOMA
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Johnson John, Respondent,
Saint Francis Hospital, Inc., Neurological Surgery, Inc. and Douglas Koontz, M.D., Petitioners.
CERTIORARI REVIEW OF CERTIFIED INTERLOCUTORY ORDER¶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.
REVIEW PREVIOUSLY GRANTED
TRIAL COURT AFFIRMED IN PART, REVERSED IN PART
CAUSE REMANDED FOR FURTHER PROCEEDINGS
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.¶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.
PROCEDURAL AND FACTUAL BACKGROUND
STANDARD OF REVIEW
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 code enacted in 1984. Id. ¶ 8, 302 P.3d at 780.¶14 The enacted provision also ran a foul of a plaintiff's guaranteed right to court access. Notwithstanding the meaning employed, the statute, conclusively created two classes of tort victims. Professional negligence plaintiffs were required to pay for a pre-petition professional review, opinion, and attest to the same before reaching the courthouse steps. General negligence plaintiffs were not. Finding, Zeier, controlling, this Court inevitably concluded the affidavit requirement was an unconstitutional special law and an economic burden on one's guaranteed right to court access.
B. The Challenged Provision¶15 Section 19.1, entitled Professional Negligence Action - Expert Opinion Affidavit Requirements - Exemption, is codified in Title 12, Chapter 1B governing Professional Negligence. That section prescribes certain filing requirements and procedures governing all civil negligence actions in which expert testimony is required to establish a departure from the applicable standard of care and resulting harm. Essentially, a plaintiff must attach to the petition an affidavit attesting, at a minimum, that the plaintiff has consulted with and procured a written report from a qualified expert that: identifies the defendant(s) against whom the claim(s) are brought; states that the defendant(s) breached the standard of care, that such breach constitutes negligence, that the plaintiff's claim has merit and is based on good cause. See (A)(1(a-c)). In addition, the statute requires the written report of the qualified expert to identify and explain why the defendant(s) acts or omissions constitute negligence. See (A)(3). Although a 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 shall not be utilized in discovery. See (A)(3) and (C). The penalty for a plaintiff's failure to file the affidavit within 90 days after the petition is filed- -or subject to a good cause extension not to exceed 60 additional days- -is mandatory dismissal without prejudice. See (A)(2), (B)(1), and (B)(2). A plaintiff may, however, seek an indigency exemption to the provisions by complying with Section 4 of the act. See § 19.1D.5 A similar dismissal is mandated for a plaintiff's failure to timely produce a copy of the qualified expert's written opinion at and upon the defendant's request. See (C)(2).
C. Section 19.1 Creates an Impermissible and Unconstitutional Barrier to
A Litigant's Right to Access the Courts
D. Special Law¶19 Remarkably, the district court and the parties presume that the Legislature's third incarnation of Section 19.1 cured the special law concerns this Court addressed in its prior decisions. Collectively, they allege section 19.1's reincarnated version now applies even handedly to all plaintiff's required to present expert testimony and the removal of the $40.00 indigency fee cured the constitutional infirmities found in Article V section 46. As section 19.1 is functionally and texturally identical to its predecessors in Zeier and Wall, we disagree. ¶20 Article V section 59 provides: "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." Granted, the Legislature may "pass special laws when a general law is not applicable." Reynolds v. Porter, 1988 OK 88, ¶ 13, 760 P.2d 816, 822. But, that authority is not absolute. Article V section 46 of the Oklahoma Constitution forbids the Legislature, except as otherwise provided in the Constitution, from passing any local or special law authorizing certain specified acts, namely- - Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate;
. . .
For limitation of civil or criminal actions;
. . .. ¶21 Since Reynolds v. Porter, this Court has applied a three-prong test to determine whether a statute is an impermissible special law under Sections 46 and 59. 1988 OK 88 ¶ 13, 760 P.2d 816, 822. The Court must determine whether the challenged provision is (1) a special or general law; (2) if the statute is a special law, is there an applicable general law; and (3) "[i]f a general law is not applicable, is the statute a permissible special law?" Id. at ¶ 13, 760 P.2d at 822. ¶22 The line of demarcation between special and general is clearly drawn when a statute singles out less than an entire class for different treatment, making it a special law. Id. at ¶ 14, 760 P.2d at 822. A general law, on the other hand, is a statute that relates to all persons or things in a class. Id. If the statute is special and it appears within section 46, the analysis ends with the first prong. The bounds of section 46 are well-defined. "[O]ur constitutional fathers isolated and set aside for protection against legislative tampering subjects to which general law[s] must always be tailored." Reynolds, ¶ 17, 760 P.2d at 823. Therefore, the Legislature is absolutely and unequivocally prohibited from acting. Id. ¶ 17, 760 P.2d at 822. Under a section 46 analysis, the inquiry then becomes: whether the challenged statute "targets for different treatment less than an entire class of similarly situated persons or things." Id. ¶ 17, 760 P.2d at 823. ¶23 Here, Section 19.1's class defining language- -"[i]n any civil action for negligence wherein the plaintiff shall be required to present the testimony of an expert witness to establish breach of the relevant standard of care and that such breach of duty resulted in harm"- -operates exclusively upon actions in which expert testimony is required to substantiate an element of the plaintiff's claim. By its text, section 19.1 imposes a heightened burden on an expert negligence class that is clearly not applicable to the general negligence class. So, while victims of an expert negligence action must pay for extremely expensive pre-petition expert review and evidentiary materials, general negligence victims do not. See e.g., Zeier v. Zimmer, 2006 OK 98, ¶ 26, 152 P.3d at 872-73. ¶24 Defendants aver that the statute is not an unconstitutional special law as it embraces all actions where expert testimony is required to establish a breach of the standard of care and causation. Interestingly, neither section 19.1 nor Title 12 define the relevant class of expert actions. But this Court has experienced first hand the unintended consequences that result from the perceived ambiguity in the previous enactment. See e.g., Rodney D. Watson & Associates, P.C. v. Knight, 2013 OK 57, 304 P.3d 1039. The determination as to whether a plaintiff is legally required to introduce expert testimony is within the trial court's province, not the plaintiff's. See generally, Christian v. Gray, 2003 OK 10, 65 P.3d 591. ¶25 Nor does section 19.1 or Title 12 define the "qualified expert" a plaintiff must utilize in procuring the pre-petition review and opinion. Qualified expert is defined in only one place: the Affordable Access to Health Care Act. Notably, the AAHCA is the same Act that defined the two affidavit requirements we previously declared unconstitutional. That act defines a qualified expert as a health care provider who has knowledge of standards of care for the diagnosis, assessment, prevention, treatment or care of the illness, disease, injury or condition involved in the medical liability action. In a case involving a claim for negligent credentialing or corporate negligence, a "qualified expert" means a physician or administrator who has or has had responsibility for credentialing or served on a medical staff committee involved in a credentialing process at the licensed health care entity.
Okla. Stat. tit. 63, § 1-1708.1C.¶26 The medical affidavit requirements in Zeier, were codified at Okla. Stat. tit. 63, § 1-1708.1E - Medical Liability Action - Contents of Affidavit - Opinions from Expert. (repealed by 2009 Okla. Sess. Laws, § 87, c. 228). The professional affidavit requirements in Wall, were codified at Okla. Stat. tit. 12, § 19, Chapter 1B - Professional Negligence. And, the expert affidavit requirements we consider today are codified, like its predecessor, at Okla. Stat. tit. 12, § 19.1, Chapter 1B - Professional Negligence. Qualified expert, medical liability action and professional negligence are all defined at Okla. Stat. tit. 63, § 1-1708.1C. Section 19.1, like its predecessor, does not contain a definition for qualified expert. Since, qualified expert is in the AAHCA at Okla. Stat. tit. 63, § 1-1708.1C, that definition controls and is applicable to section 19.1. We reiterate, "[w]hen the provisions of a statute assign one meaning to a word or phrase, its definition will apply in every other instance in which the same word is found anywhere else in the statutory compilation." Wall, ¶ 12, 302 P.3d at 782. Thus, an expert negligence action, professional negligence action and medical liability action are essentially the same as all three are only statutorily defined in the medical malpractice context. See Okla. Stat. tit. 63, § 1-1708.1C; see also, Wall, ¶ 13, 302 P.3d at 782. ¶27 If the Legislature intended section 19.1 to apply to all expert negligence actions, then its failure to say so renders the operative class vague. This is precisely the situation we faced in Wall. See Wall, ¶ 14, 302 P.3d at 782. Black's Law Dictionary defines "expert" as "[o]ne who is knowledgeable in a specialized field, that knowledge being obtained from either education or personal experience." Although "qualified expert" is omitted from Black's Law Dictionary, the term "qualified" is defined as "[a]dapted; fitted; entitled; susceptible; capable; competent; fitting; possessing legal power or capacity; eligible; as a 'qualified voter'." ¶28 The possibilities are endless. Left open, a plaintiff is required to postulate, pre-petition, whether section 19.1 applies, and if so, whether the selected expert satisfies the "qualified expert" requirement. It is well-settled that "[t]he qualification of an expert witness is generally within the sound discretion of the trial court . . .." Williams Natural Gas Co. v. Perkins, 1997 OK 72, ¶ 17, 952 P.2d 483, 489. Like the overly inclusive class in Wall, section 19.1's overly broad application is unworkable. See Wall, ¶ 16, 302 P.3d 784. ¶29 Section 19.1 also impinges on the district court's adjudicative authority. By its expressed terms, the statute operates to remove any exercise of judicial discretion from the district court's purview. In its stead, are four legislatively mandated dismissal provisions for failing to file the affidavit or produce the expert report, namely- -at the commencement of the action, (A)(2)(b); ninety days post petition filing, (B)(1); sixty days after the ninety day extension, (B)(2); and at the defendant's request absent good cause for the plaintiff's non-compliance in producing or procuring the qualified expert's report. (C)(2). Except in cases where the plaintiff has been judicially declared indigent, the district courts are similarly restrained from exercising judicial discretion and dismissal of the plaintiff's action is imminent. Functionally, section 19.1 divests the district courts of the power to adjudicate civil negligence actions that require an expert to substantiate the plaintiff's claim unless and until the plaintiff satisfies the conditions precedent. Legislatively removing "the discretionary component in [the] adjudicative process is a usurpation of the courts' freedom that is essential to the judiciary's independence from the other two branches." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. This it cannot do. ¶30 Section 19.1 also serves to limit the admissibility of certain types of evidence admissible by parties in the trial of civil negligence cases requiring an expert. Whether in trial or discovery, the statute expressly prohibits the parties' introduction or inquiry into the pre-petition expert opinion. On one hand, the statute mandates a plaintiff to pay for pre-petition expert review and opinion before commencing an action; yet, on the other hand, renders that same evidence useless. See (A)(3). The expert affidavit requirements are merely technicalities. ¶31 Although the verbiage utilized in section 19.1 varies slightly from its predecessors, section 19.1 is functionally and texturally identical. As discussed, supra, the class defining language in Wall was "actions for professional negligence." In Zeier, the class defining language was "medical liability actions." And, here, the class defining language is "actions requiring . . . a qualified expert . . . to establish breach of the relevant standard of care and that such breach of duty resulted in harm." 19.1(A). Functionally, 19.1 operates on a subset of negligence plaintiffs for different evidentiary treatment based on the type of action the plaintiff pursues. See Wall; see also, Zeier. Section 19.1 has the exact operative effect as its two incarnated versions. Section 19.1 is an unconstitutional special law regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts. ¶32 The trilogy of merit affidavits discussed today are successive enactments that target medical malpractice actions. "A prima facie case of medical malpractice, like all negligence claims, contains three elements: (a) a duty owed by the defendant to protect the plaintiff from injury, (b) a failure to properly exercise or perform that duty and (c) plaintiff's injuries proximately caused by the defendant's failure to exercise his duty of care." Robinson v. Okla. Nephrology Assoc., Inc., 2007 OK 2, ¶ 9, 154 P.3d 1250, 1253-54. Although all negligence plaintiffs must substantiate all three elements during the course of the litigation, one need not do so to a specifically high level of probability or absolute certainty before entering the courthouse doors. Id. ¶ 11, 154 P.3d at 1254; see also, Wall, ¶ 8, 302 P.3d at 780. Here, the Legislature's use of a synonymous phrase, in an attempt to cure the constitutional infirmities embodied in its prior enactments, does not pass constitutional muster.
REVIEW PREVIOUSLY GRANTED
TRIAL COURT AFFIRMED IN PART, REVERSED IN PART
CAUSE REMANDED FOR FURTHER PROCEEDINGS
Concur: Combs, C.J.,Kauger, Watt, Winchester, Edmondson, and Reif, JJ.
Dissent: Gurich, V.C.J.
Recuse: Wyrick, J.
1 Oklahoma Statutes Citationized
Title 12. Civil Procedure
Chapter 1B - Professional Negligence
Section 19.1 - Professional Negligence Action - Expert Opinion
Affidavit Requirements - Exemption
Okla. Stat. tit. 12, § 19.1 (Supp. 2013).
2 In pertinent part, that section reads:
. . . .
(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:
. . . .
2. An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment;
. . . .
The failure of a party to appeal from an order that is appealable under either subdivision 2 or 3 of subsection (b) of this section shall not preclude him from asserting error in the order after the judgment or final order is rendered.
Okla. Stat. tit. 12, § 952(b)(3).
3 Patient's case, sub judice, is a refiling of a previous action pursuant to Okla. Stat. tit. 12, § 100. Therefore, if this Court dismisses Patient's action, such dismissal is tantamount to dismissal with prejudice. While the prior dismissal is noticed, it does not, however, drive this Court's probe into the constitutionality of section 19.1.
4 At least nine courts have enforced the statute and/or found the statute to be constitutional; however, two courts have found the statute to be unconstitutional and/or unenforceable.
5 Notably, the only reference to an indigency exemption within Title 12 is actually found in section 192.1, not section 4 as section 19.1D indicates. Section 192.1 - Indigency Exemption from Affidavit of Merit - Procedure - Promulgation of Rules by the Supreme Court reads:A. When a plaintiff requests an indigency exemption from providing an affidavit of merit in a civil action for negligence pursuant to Section 2 of this act, such person shall submit an appropriate application to the court clerk, on a form created by the Administrative Director of the Courts, which shall state that the application is signed under oath and under the penalty of perjury and that a false statement may be prosecuted as such. B. 1. The Supreme Court shall promulgate rules governing the determination of indigency for a plaintiff claiming an exemption from providing an affidavit of merit in a civil action for negligence pursuant to Section 2 of this act. The initial determination of indigency shall be made by the Chief Judge of the Judicial District or a designee thereof, based on the plaintiff's application and the rules provided herein. 2. Upon promulgation of the rules required by law, the determination of indigency shall be subject to review by the Presiding Judge of the Judicial Administrative District.
Laws 2013, 1st Extr. Sess., SB 1, c. 12, § 4.
6 See e.g., Richardson, Richardson and Boudreaux, PLCC v. Morrissey, 2012 OK 52, 283 P.3d 308 (A trial court, in a professional negligence action, is required to dismiss plaintiff's insufficient or otherwise non-compliant affidavit under § 19).