Monica Belinda Zeier brought a malpractice suit against Zimmer, Inc. and Theron S. Nichols, M.D., asserting that the doctor installed the wrong and defective replacement parts manufactured by Zimmer during her knee replacement surgery. Ms. Zeier failed to attach an affidavit of medical negligence signed by a physician to her complaint as required by Oklahoma law prior to the commencement of a lawsuit. Her case was dismissed. She challenged the decision by the trial court, asserting that the state law was unconstitutional in that it violated a provision in the Oklahoma state constitution prohibiting "special" statutes. In Zwier v. Zimmer, Inc., and Theron S. Nichols, M.D., 2006 WL 3717904, the Oklahoma Supreme Court agreed.
Article 5, Section 46 of the Oklahoma Constitution provides that,
The legislature shall not except as otherwise provided in this Constitution, pass any local or special law authorizing:
* * *
Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts. . . .
The defendants argued that a statute covering all health care providers is a general rather than a special law. The Supreme Court disagreed.
The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes-those who pursue a clause of action in negligence generally and those who name medical professionals as defendants.
Its seems that it is all about choosing the right group in evaluating whether a particular statute is "general" or "special."
Comments