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Certificate of Merit Rule Returns

Certificate of Merit Rule Returns

The Oklahoma Legislature refuses to give up on the controversial Affidavit of Merit requirement for filing medical malpractice lawsuits. Even after the state Supreme Court twice struck down the rule as a violation of the Oklahoma Constitution, the lawmakers resurrected it yet again during a recent special session aimed at broad lawsuit reform.

As we reported in July, the state Supreme Court struck down the requirement that those who plan to file a lawsuit for professional negligence — including medical malpractice — file an expert affidavit certifying the merit of the case. The requirement applied only to professional negligence cases and not general negligence cases. Therefore, the court ruled, it violated the state constitutional ban on laws that create special requirements for certain plaintiffs who are pursuing essentially the same legal action as other plaintiffs.

Undaunted, the legislature responded by drafting and passing a revised Affidavit of Merit bill that it hopes will pass muster. The governor signed the bill into law on September 10, 2013.

Under the new version of the law:

  • An Affidavit of Merit is required for all negligence cases that typically require expert witness testimony, not just professional negligence cases.
  • If a civil action for negligence is filed without the affidavit attached, the court dismisses the case upon a motion by the defendant.
  • The court may grant the plaintiff an extension of time to provide the affidavit if the plaintiff shows good cause.
  • A case dismissed because of the absence of the affidavit may be refilled.
  • The affidavit requirement may be waived for plaintiffs who meet certain standards of financial need.

Many legal analysts believe the new law will be challenged and possibly tossed out again. In the meantime, if you or a loved one has been a victim of medical malpractice or other type of negligence, the attorneys of Stipe Law Firm can ensure your case is properly filed and pursued.

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