Controversial tort reform looming

Oklahoma’s long debated and controversial tort reform law becomes effective Nov. 1.
Changes deal with capping damages on medical malpractice suits, codifying summary judgment rules, and providing for determining the validity of class action suits.
State Representative Dan Sullivan, co-author of HB1603 discussed ‘‘Tort Law and What it Means to Attorneys’’ during a breakfast CLE at the Tulsa County Bar Association.
Sullivan, of Counsel at Pierce Couch Hendrickson, said that while the new law is not perfect, it is a first step in removing frivolous lawsuits from state courts that results in unneeded and costly delays for legitimate cases.
This is compromise legislation, he said, brought about by proponents and opponents of the bill working together. It gets down to the point that deals with cases going to court that truly have merit.
Sullivan, who served as chief negotiator for the Oklahoma House, is a medical malpractice defense attorney.
This is a complex bill, he said. The section on capping damages has been left open for further committee study and recommendations.
Lawmakers did take on non-economic damages by placing a $400,000 cap resulting from civil action arising from any claimed bodily injury.
A committee is studying this section of the law to see whether or not an insurance program can be obtained, Sullivan said. Premiums will be paid with the state’s general revenue fund. This part of the law has been left open for committee further study.
To be effective, the fund must maintain availability of $20 million annually. Doctors will be required to carry at least $1 million in medical liability insurance that covers the majority of malpractice cases. Currently, there is no state minimum requirement for insurance coverage.
That medical cap does not apply to acts in which the defendant’s actions were criminal, reckless, negligent, fraudulent or done with malice, he said. It also does not apply in claims resulting from professional negligence against a physician of the injured person suffers permanent and substantial physical abnormality or disfigurement, loss of limb, or if the person no longer can independently care for themselves.
Drawing on personal experience, Sullivan said he has seen people go through the agony of a trial in a medical malpractice case and lose. Initially they were made at the medical system. Now they also are mad at the legal system on top of that because their case had been filed without merit.
Sullivan then quickly pointed out that when a medical malpractice case has validity that it should go forward to the court and be heard by a jury. Sometimes when people cannot agree in any part of the dispute and the only way to have a resolution is through a trial.
Summary judgments have been codified that will allow judges to use them, Sullivan said. In the past, these judgments were court rules. Judges didn’t like to use them because they often were overturned on appeal and they would have to hear the case a second time.
A summary judgment, he explained, is a tool used to dispense of a case quickly if the plaintiff doesn’t have enough evidence to dispute the litigation. It means the ruling in the case and judgment favors the defendant, eliminating the expense of a jury trial.
Attorney fees are not awarded in summary judgments unless the case involves property damage.
Another significant part of the reform is the reinstatement of the certificate of merit involving expert witnesses.
That provision requires an affidavit from an expert witness about the validity of a case be obtained before the lawsuit is filed, he said. Again, the reason is that if no expert witness supports the case it probably shouldn’t be filed. This action helps prevent the need of taking depositions and other steps required in moving the case forward.
Changes also were made in the joint and several liability section that eliminates suing several people and targeting the deep pockets in the case.
If there are three parties named in a lawsuit, the plaintiff could expect to obtain only 33 1/3 percent of damages from each unless one is found to have more than 51 percent of the blame, Sullivan said. This gets back to the responsible party and not others. It prevents money being taken corporation because the guilty party did not have deep pockets. There are variations, but the law specifies that everyone should be held responsible for their part of the case.
A judge will rule on the validity of class action lawsuits and that ruling is subject to an automatic appeal, Sullivan said. This is still another step in keeping the court system open and available to cases that have merit.
A common sense consumption section also is part of the new law.
That section notes that ‘‘numerous food manufacturers and distributors, including McDonald’s, Starbucks and Kentucky Fried Chicken have had lawsuits filed against them with the claim that their product causes people to be obese and leads to numerous health problems.
Under the educator protection section, HB1603 establishes as law that any student in grades six through 12 found to have assaulted, attempted to cause physical bodily injury or acted in a manner that could reasonably cause bodily injury to a school employee or person volunteering for a school shall be suspended for the remainder of the current semester and the next consecutive semester.
However, the language in the law is written so the district superintendent on a case-by-case basis may modify the term of suspension.
Some liability protections have been extended to gun manufacturers; emergency volunteers; companies who have purchased other companies that had previous exposure to asbestos lawsuits and agritourism activities involving livestock.
Regardless of the changes in the bill, liability does not extend to instances of negligence, malice and criminal and reckless behavior, Sullivan said.
HB 1603 is not what sponsors originally, he said. But it is a huge step forward and could be the platform for additional changes. Now it is time to wait and see how the law works.
Sullivan can be reached at 583-8100.

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