1. OSMA RESPONSE TO COURT RULING ON LAWSUIT REFORM
As you may have heard by now, on Tuesday afternoon the Oklahoma Supreme Court threw out
many of the significant lawsuit reforms that we had worked so hard to pass in the last five years. It
is truly unfortunate to see this fate befall a law for which we had worked so hard and which was
paying dividends for so many Oklahoma physicians and their patients.
The Court issued two rulings simultaneously: in the first, (Douglas v. Cox), the Court did not rule
on the policy of the measure, but rather ruled that the entirety of HB 1603 (2009) violated the
"single subject" rule by placing a variety of disparate civil justice provisions in one bill.
In the second ruling, (Wall v. Marouk) the Court ruled that requiring a certificate of merit (e.g. an
expert opinion or affidavit showing that the case had merit) was unconstitutional because it (a) is
a "special law" applying only to professional negligence cases, not all negligence cases generally
and (b) it creates "an undue financial barrier on access to the courts." This is unfortunate because
the certificate of merit requirement had already been shown to greatly reduce the number of
frivolous lawsuits that were filed.
Although yesterday’s rulings are disappointing, there are a couple of silver linings. First, the court
cases only dealt with the 2009 law. As such, our 2011 reforms—including a $350,000 cap on
noneconomic damages and a repeal of joint and several liability—are still intact. Second, with the
exception of the certificate of merit issue, the Court did not rule on the substance of the 2009
reforms, but only on the manner in which they were passed. As such, we will have an opportunity
to work with legislative leaders and Governor Fallin to remedy the situation and re‐codify the
language that is good for physicians in a way that (we hope) will pass Supreme Court muster.
However, let us be very clear and very blunt: passing meaningful tort reform—even language we
already passed just a few years ago—will not be easy. Tuesday’s ruling will only further embolden
trial lawyers and their allies. In last November’s elections, trial lawyers set up three different front
group PACs they used to funnel money to challengers to many of our strongest champions. And
their efforts will only grow stronger with the knowledge that they will be back fighting this issue
at the State Capitol. Now, more than ever, your continued support of OSMA and your
generous contributions to OMPAC, will be vital to our future success.
We are currently working with pro‐medicine legislators and members of the business community
to evaluate our next moves. We will continue to keep you updated on what OSMA is doing and
how you can help as we work to improve the practice climate for Oklahoma physicians.