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Physician Malpractice: John v. Saint Francis Hospital

The Oklahoma Supreme Court has once again ruled that requiring an affidavit of merit when suing physicians for malpractice is unconstitutional. With some exceptions, Okla. Stat. 12 Section 19.1 required that Plaintiffs file an affidavit from an expert witness certifying their claim as meritorious within sixty days of filing their Petition. The Oklahoma Supreme Court had on two previous occasions decided that similar requirements were unconstitutional because it imposes an impermissible impediment to the courts. The Court decided this case on similar grounds.

Other states have enacted similar statutes in an effort to curb dubious claims. But, it seems that this route of tort reform is not going to take root in Oklahoma.

Physicians should evaluate their current malpractice insurance policies, especially those provided by an employer. Some physicians may be surprised to find that their policy is actually a risk management policy. These policies may encourage employers to watch their bottom line rather than defend the physician’s reputation.