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Oklahoma Supreme Court Resurrects Nursing Home Lawsuit By Voiding Affidavit Law – Douglas v. Cox Retirement Properties

As a Pennsylvania nursing home lawyer, I frequently end up pursuing medical malpractice claims because Pennsylvania nursing home abuse often takes the form of bad medical decisions. For example, over-medicating patients, failing to timely treat a clear illness or allowing bedsores to develop are all medical mistakes that are unfortunately common at nursing homes. But because medical malpractice is a highly politicized area of the law, nursing home patients and their families often face extra hurdles when they want to file a medical malpractice claim–such as Pennsylvania’s affidavit of merit requirement. Oklahoma, too, has passed such a requirement, but that state’s high court ruled that the requirement was part of an unconstitutional “logrolling” bill in Douglas v. Cox Retirement Properties, Inc..

Carol Douglas sued Cox in her capacity as the administrator for the estate of her father, Richard Lee Douglas. Richard Douglas was admitted for extended rehabilitative care but discharged 21 days later; he died less than a month after his discharge. The opinion does not detail the estate’s contentions except to say that it alleges negligent care and treatment. But after the suit was filed, Cox moved to dismiss because Douglas had not complied with a 2009 law requiring a written expert opinion stating that the case is meritorious. Douglas replied that the 2009 law was unconstitutional because it was enacted as a multi-subject “logrolling” bill in violation of the single-subject rule in Oklahoma’s constitution. The trial court granted the motion to dismiss but certified that order for immediate review, and the Oklahoma Supreme Court took it up.

The Oklahoma state constitution provides, in relevant part, that “every act of the Legislature shall embrace but one subject.” This is intended in part to prevent “logrolling,” the court said, which is bundling desirable provisions with unrelated, undesirable ones in order to make a law “veto proof” or certain to be vetoed. The court found that the 2009 law that contained the affidavit requirement, the Comprehensive Lawsuit Reform Act, contains 90 sections that are not closely related by theme or purpose. One adopts federal procedure code to control state lawsuits; another helps collects Medicaid refunds; several other provisions limit liability for specific kinds of businesses. Passing these provisions under the umbrella of lawsuit reform is not adequate to bring them into compliance with the single-subject rule, the high court said. A legislator considering the law would be required to vote for all of them in order to pass any. And the court declined to sever the provisions it found unconstitutional, arguing that this would make it the policy maker inappropriately. It revived the case and remanded to trial court.

This opinion from Oklahoma’s Supreme Court followed a related opinion in which the affidavit requirement was struck down for separate reasons. In Wall v. Marouk, the high court found that the affidavit requirement was an unconstitutional “special law” that imposed different rights or duties on members of a class who are otherwise on the same footing. It also found that the requirement created a financial barrier to justice. As a Philadelphia medical malpractice lawyer, I’ve been highly critical of affidavit requirements in our state because of their financial cost–as well as the time problem they can create. As a Philadelphia injury lawyer, I don’t believe we should impose more barriers to justice on people who are already suffering from serious physical and financial problems because of a nursing home’s mistake.

If your family has suffered a death or a serious injury caused by a nursing home’s neglect or abuse, don’t wait to call Rosenbaum & Associates for help. You can send us a message online or call 1-800-7-LEGAL-7 today for a free consultation.

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