Zeier v. Zimmer, Inc.

• Decision Date: 19 December 2006
• Docket Number: No. 102,472.,102,472.
• Citation: 152 P.3d 861,2006 OK 98
• Parties: Monica Belinda ZEIER, Plaintiff/Appellant, v. ZIMMER, INC. and Theron S. Nichols, M.D., Defendants/Appellees.
• Court: Oklahoma Supreme Court

152 P.3d 861

2006 OK 98

Monica Belinda ZEIER, Plaintiff/Appellant, v. ZIMMER, INC. and Theron S. Nichols, M.D., Defendants/Appellees.

No. 102,472.

Supreme Court of Oklahoma.

December 19, 2006.

Rehearing Denied February 20, 2007.

Appeal from the District Court of Okmulgee County.

¶ 0 The plaintiff/appellant, Monica Belinda Zeier (Zeier/patient), filed suit against the defendant/appellee, Theron S. Nichols (Nichols/physician/doctor), alleging that the doctor's utilization of the wrong medical device in her knee-replacement procedure constituted malpractice. The patient did not attach an affidavit to the petition attesting that a qualified expert had been consulted and issued an opinion sufficient to deem the claim meritorious as required by 63 O.S. Supp. 2003 § 1-1708.1E. The doctor filed a motion to dismiss. Zeier argued that the affidavit requirement was unconstitutional as a prohibited special law and that it violated the constitutional right of access to courts. The trial court disagreed and dismissed the cause. We hold that 63 O.S. Supp.2003 § 1-1708.1E: 1) is an unconstitutional special law prohibited by art. 5, § 46 of the Oklahoma Constitution; and 2) creates an unconstitutional monetary barrier to the access to courts guaranteed by the Oklahoma Constitution art. 2, § 6.

REVERSED.

John B. Nicks, Thomas A. Layon, Layon, Cronin, Kaiser & Nicks P.A., Tulsa, OK, for Plaintiff/Appellant, Monica Belinda Zeier.

Jeffrey A. Glendening, James A. Higgins, John D. Bogatko, The Glendening Law Firm, P.L.L.C., Tulsa, OK, for Defendant/Appellee, Theron S. Nichols, M.D.

Harvey D. Ellis, Crowe & Dunlevy, Oklahoma City, OK, for amicus curiae, Oklahoma State Medical Association.

WATT, C.J.

¶ 1 A single dispositive issue is presented on appeal: whether the affidavit of merit¹ requirement of 63 O.S. Supp.2003 § 1-1708.1E² is constitutional. We determine that the statute is an unconstitutional special law prohibited by the Oklahoma Constitution art. 5, § 46.³ Furthermore, we hold that the requirement that a medical malpractice claimant obtain a professional's opinion that the cause is meritorious at a cost of between $500.00 and $5,000.00⁴ creates an unconstitutional monetary barrier to court access guaranteed by art. 2, § 6 of the Oklahoma Constitution.⁵

FACTS

¶ 2 On August 9, 2004, the defendant/appellee, Theron S. Nichols (Nichols/physician/doctor), performed knee replacement surgery on the plaintiff/appellant, Monica Belinda Zeier (Zeier/patient), implanting a device manufactured by Zimmer, Inc. (Zimmer/manufacturer). Zeier filed suit against the physician and the manufacturer on May 5, 2005, alleging negligence, manufacturer's products liability and breach of warranty. The petition provided that: 1) the wrong knee replacement parts were utilized during surgery, 2) the device was defective in design; and 3) the instrument was in the exclusive control of Nichols and Zimmer at all relevant times.

¶ 3 The patient neither attached an affidavit of medical negligence, as required by 63 O.S. Supp.2003 § 1-1708.1E, nor did Zeier request an extension to comply with the statutory requirement. On June 1, 2005, the doctor filed a motion to dismiss for the patient's failure to provide the medical negligence affidavit. Zeier did not respond and Nichols filed a motion to deem the cause confessed which was mailed to the patient on June 29, 2005. On the same date, Zeier responded to the motion to dismiss asserting that the petition stated a cause of action for negligence under the principle of res ipsa loquitur.⁶ Furthermore, she argued that the affidavit requirement of 63 O.S. Supp.2003 § 1-1708.1E constituted an unconstitutional special law under the Oklahoma Constitution art. 5, §§ 46 and 59⁷ and that it violated the constitutional guarantee of access to the courts contained in art. 2, § 6 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution.⁸

¶ 4 The trial court entered a final order of dismissal without prejudice to refiling on August 2, 2005. On August 25, 2005, Zeier filed her petition in error and motion to retain. The motion was granted on September 26, 2005. On October 25, 2005, the parties were ordered to file briefs. The order setting the briefing schedule also notified the Attorney General of the filing of the appeal attacking the constitutionality of a state statute. The order informed the Attorney General⁹ and any interested amici curiae¹⁰ that, if briefs were filed in the cause, they would be held to the same briefing schedule as the parties. The Attorney General declined briefing of the issues. The parties and the amicus curiae, Oklahoma State Medical Association (Association), filed their briefs-in-chief on November 14 and 15, 2005. The briefing cycle was completed on December 5, 2005, with the filing of the physician's reply.

DISCUSSION

¶ 5 a. Title 63 O.S. Supp.2003 § 1-1708.1E is an unconstitutional special law prohibited by art. 5, § 46 of the Oklahoma Constitution.

¶ 6 Zeier contends that 63 O.S. Supp.2003 § 1-1708.1E¹¹ violates art. 5, § 46¹² in that it is a special law affecting only medical malpractice plaintiffs rather than all individuals seeking redress for negligent acts. The doctor insists that the statute is a general law encompassing all of the class—medical providers—and that it is general in its application. We disagree with the doctor.

¶ 7 Art. 5, § 46 of the Oklahoma Constitution provides that the Legislature may not pass special laws affecting certain subjects. The constitutional provision contains twenty eight areas where general laws shall always be applicable. Included within the list of categories is a prohibition against regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts. The language utilized in art. 5, § 46 is a mandatory prohibition¹³ against special laws—it provides in pertinent part:

"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 . . ." [Emphasis provided.]

¶ 8 Title 63 O.S. Supp.2003 § 1-1708.1E requires that a plaintiff alleging medical malpractice attach an affidavit to the petition stating that the plaintiff: 1) has consulted with a qualified expert; 2) has obtained a written opinion from a qualified expert that the facts presented constitute professional negligence; and 3) has determined, on the basis of the expert's opinion, that the malpractice claim is meritorious and based on good cause. Plaintiffs may petition the trial court for an extension for filing the affidavit of merit not to exceed ninety days. The request must be accompanied by a showing of good cause. Although the defendant may obtain a copy of the expert's opinion, upon which the affidavit of merit is based, the opinion is inadmissable at trial and may not be utilized in discovery.

¶ 9 Both the doctor and the amicus curaie rely on McCarroll v. Doctors General Hosp., 1983 OK 54, 664 P.2d 382, for the proposition that a statute covering all health care providers is a general rather than a special law. McCarroll considered a portion of a statute which provided a two-year statute of limitations¹⁴ covering actions for damages arising from medical treatment. The McCarroll Court determined, because the limitations provision treated all health care providers equally, the Legislature had authority to group the providers into a class for special treatment. It held that the classification of health care providers for purposes of legislatively limiting the time within which an action against them could be brought was not such an arbitrary exercise of legislative discretion or lacking in a showing of good cause as to compel the Court to declare the statute unconstitutional.¹⁵

¶ 10 We considered the balance of the same statute, not originally addressed in McCarroll, five years later in Reynolds v. Porter, 1988 OK 88, 760 P.2d 816. The issue in Reynolds involved the attempt by the Legislature, in the same statutory provision considered by the McCarroll Court, to carve out of a single common-law class a subclass of actionable medical malpractice claims which could not be discovered with reasonable diligence until after three years. Essentially, by passing 73 O.S.1981 § 18,¹⁶ the Legislature attempted to limit the applicability of the discovery rule in medical malpractice litigation. In Reynolds, we held that the three-year proviso in 76 O.S.1981 § 18 was a special statute of limitations absolutely prohibited by art. 5, § 46 of the Oklahoma Constitution. Furthermore, we recognized that the class implicated constituted all actionable tort claims—not merely a subset of claims denominated as medical malpractice.

¶ 11 The Reynolds Court attempted to eliminate the confusion between a constitutional attack brought under art. 5, § 46, containing specific legislative prohibitions, and art. 5, § 59,¹⁷ allowing the Legislature to pass special laws when no general law is applicable. Reynolds explained that when an art. 5, § 46 issue arises—as we have here, there is one dispositive question which must be determined. The opinion provides:

"Under § 46 our constitutional review of a statute stops with the first prong: Is the statute a special or general law? If the statute is special, § 46 absolutely and unequivocally prohibits its passage by the legislature. . . . In other words, in § 46 our constitutional fathers isolated and set aside for protection against legislative tampering subjects to which general law must always be tailored. . . . In a § 46 attack, the only issue to be resolved is whether a statute upon a subject enumerated in that section targets for different treatment less than an entire class of similarly situated persons or things." [Citations omitted. Emphasis in original.]

The § 46...