The Merit of Merit Affidavits

By Alex Stein

Similar to many other states, Oklahoma has a statute prescribing that suits alleging medical malpractice must be verified by an affidavit from a qualified medical expert. Suits unaccompanied by a proper affidavit must be stricken out. This statute is part of what I call – and commend – as a procedural tort reform: it allows courts to get rid of unmeritorious suits against doctors and hospitals early in the process. The statute, however, recently became a dead letter after being pronounced unconstitutional by Oklahoma’s Supreme Court for the second time in a row (Wall v. Marouk, — P.3d —-, 2013 WL 2407160 (Okla. 2013)). Evidently, this Court does not view merit affidavits as favorably as I do.  Let’s see why.

The previous version of Oklahoma’s affidavit-of-merit requirement, limited to medical malpractice suits, was found unconstitutional as a “special law” and “monetary barrier to the access to courts” (Zeier v. Zimmer, Inc., 152 P. 3d 861 (Okla. 2006)). The current version extended to all suits asserting professional negligence, which makes it less “special.” This version was nonetheless challenged by a patient whose suit against a physician was not accompanied by a merit affidavit from a qualified expert. The plaintiff alleged that the physician caused him permanent injury during surgery (loss of feeling in right fingers) by negligently cutting the median nerve in his right arm.  The trial court ruled that the plaintiff must submit the required affidavit within twenty days or face dismissal.

The Oklahoma Supreme Court voided this requirement for being as unconstitutional as the previous one.  The Court ruled that the requirement arbitrarily separates suits that allege professional negligence from other civil actions, in which plaintiffs do not bear the costly burden of obtaining expert review prior to proceeding. This disparate treatment, explained the Court, discriminates against victims of professional misconduct.

The Court also ruled that the merit affidavit requirement creates an unconstitutional burden on access to the courts. The Court estimated that the cost of obtaining an expert opinion to support the required affidavit of merit may range from $500 to $5000, well above the benchmark that it previously found constitutional as a jury fee ($349). This burden, held the Court, is too heavy.

At the beginning of its decision, the Court noted that “The Oklahoma Constitution is a unique document” as “some of its provisions are unlike those in the constitutions of any other state, and some are more detailed and restrictive than those of other states.”  By making this point, the Court indicated that it is well aware of the fact that its decision is a constitutional outlier: as I mentioned at the outset, the prevalent view across the states holds that merit affidavit requirements are constitutional.

The uniqueness of Oklahoma’s Constitution makes it difficult for an outsider law professor to comment on the Court’s decision. With this caveat in mind, I still fail to understand the Court’s economic analysis of the merit affidavit requirement. The statute that the Court pronounced unconstitutional required plaintiffs to procure expert testimony well before trial. This requirement imposes a financial burden on medical-malpractice (and other) plaintiffs. However, when a case goes to trial—which happens whenever the defendant claims that the suit has no merit—the plaintiff must procure expert testimony and pay for it. The condemned statute thus merely required plaintiffs to upfront their expenditure on expert testimony.

I can’t see how this impedes access to the courts. The right comparison here is not between the expert’s $5000 fee and the Court’s constitutionality benchmark for fees, $349.  Rather, the right comparison here is between the $349 benchmark and the interest accruable on $5000 for the period separating the trial from the filing of the plaintiff’s suit. When an individual makes, say, a two-year deposit of $5000 in an interest bearing savings account, she hardly earns $349.  If so, the merit affidavit requirement is not as onerous as estimated by the Court. At the same time, it promotes an important social interest by screening away unmeritorious suits that waste public resources and in more extreme scenarios drive up the cost of medical care.

Furthermore, as noted by Justice Steven Taylor in his dissent, the condemned statute exempted indigent plaintiffs from the duty to submit a merit affidavit. This exemption protected Oklahomans’ access to justice well enough.

4 thoughts to “The Merit of Merit Affidavits”

  1. Fascinating case Alex. I too am an outsider to this and all things Oklahoma! One question it raises for me is what effect merit affidavits have on settlement behavior? So it is possible that those who get them actually get BETTER access to “justice” or “compensation” if not access to the courts if the existence of these affidavits act as a signal for the tortfeasor to settle. Then there would be interesting questions about the ability to “mimic.” Finally, there would be an interesting question about “playing for rules” to use Marc Galanter’s phrase. If merit affidavits help identify the “winner” from “losers” cases, it may be that tortfeasors have an incentive to litigate the losers in order to get better general rules they can then apply in new cases winner or loser alike. Sorry, that was just a few stray thoughts, but I would love to hear more from you on your thoughts about what merit affidavits due to settlement as well as effects on juror decision making (do juries in states that have these laws behave differently for identical claims than those that do not).

    1. Thanks for your input, Glenn!

      Merit affidavits (coupled with stringent expert qualification requirements) have two separate effects on settlements and trial:

      1. SORTING
      Merit affidavits make it easier for courts to identify and strike out unmeritorious malpractice suits. When the expert is unable to identify the profession’s rule or protocol that the defendant failed to follow, the court will dismiss the suit.

      Moreover, when the defendant belongs to a different specialty or school of thought, the affidavit becomes inconsequential, and the plaintiff must find another expert. Finally, the plaintiff’s inability to find or unwillingness to hire an appropriate expert would indicate that the suit is weak. Under such circumstances, the defendant will either offer the plaintiff a nuisance settlement payment or litigate to judgment (which s/he will likely win).

      When a plaintiff manages to get a proper expert affidavit, her access to court is great and she actually has a very good chance to win the case. But getting such an affidavit isn’t easy. First, in the majority of the states, the expert must show her affiliation to and actual practice within the same specialty as the defendant doctor. Moreover – and this is true about every state – the expert must be very meticulous in formulating the profession’s rule that the defendant doctor allegedly violated. This part is tricky because doctors usually have several professionally approved treatment options, rather than just one.

      2. SUNK COST
      The plaintiff’s expenditure on the affidavit is a sunk cost that will not affect her future choices between settlement and trial. If the suit’s expected value, net of projected litigation costs, is $300,000 and the affidavit’s cost is $20,000, the plaintiff would not agree to settle for less than $300,000 (as she has already burned her 20K). In the states that require no upfront investment in the affidavit, the expected value of the plaintiff’s suit is $300,000-$20,000 (the future, but not yet expended, expert fee)=$280,000. With all other things being equal, this makes settlement more likely as parties now have additional $20,000 in their “settlement pie.” For example, if the defendant estimates that her expected payout is $220,000, and the lawyer and expert would cost her $60,000 in the event of a trial, she would settle the case by agreeing to pay the plaintiff $280,000. The plaintiff, for her part, would settle for this amount only before, but not after, she spent $20,000 on the expert’s affidavit (because, again, she values her suit at $300,000). That said, when the compensation sought by the plaintiff is extremely high, the fact that she must sink $20,000 at the filing (let alone just $5K, as per Oklahoma Supreme Court’s estimation) won’t matter much.

      I very much agree with Galanter about “the haves coming out ahead”: see here. That said, doctors have already won the rule formation battle in the medical malpractice area. Rules that they need to follow to avoid liability are determined by the medical profession that formulates them in a very specific and technical fashion. The old days, in which medical malpractice was decided by a broad “good practice” standard, are gone: see my descriptive account here. Merit affidavit requirements help implement this policy, which I think is right, but others may quite reasonably disagree with me.

      Regarding the empirical side of your question, I don’t know the answer. But I might know it in the future as Michael Frakes, Ronen Avraham and myself are carrying out an empirical investigation into the effects of merit affidavits and similar requirements.

  2. Interesting post and comments. If merit affidavits do in fact serve a signaling function that distinguishes “winners” from “losers,” then might not we expect plaintiffs with “winner” cases to voluntarily submit affidavits? Plaintiffs should see this as a good investment if the expected return (either a higher settlement amount or increased chance of victory at trial) exceeds the cost of producing the affidavit. If this practice became prevalent, it might turn into a de facto requirement that obviates the need for a mandatory procedural rule. But I am probably presuming a more rational system that what actually exists.

    1. You are *not*, Anna! — and you’re making an excellent point. Those jurisdictions that have no merit affidavits go by the regular rules of civil procedure that are premised on the evidence-free pleadings idea. Your question is why not modify this default, so that parties submit their expert affidavits voluntarily. I suspect that, when parties know who stands to win, one of them will try to muddy the waters, thereby increasing her opponent’s cost of winning. Hence, courts have to step in here by making a rule that absence of an advanced expert affidavit indicates weakness of the party’s case. Thus far, we have no such rule, but it isn’t unheard of either: Israeli courts made it for themselves judicially, which was convenient for them to do as they have no juries. But on a general scale, private reconfiguration of civil procedure defaults is a more complicated affair because of path-dependencies and signaling problems: the linked piece by Robert Bone is very helpful in this regard. A.S.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.