Senate, House Clear Lawsuit Reform Bill

The State Senate and House today passed a comprehensive lawsuit reform bill that represents an agreement with lawmakers, business advocates, doctors, mineral owners and trial lawyers. The measure now goes to Governor Henry for action.

House leaders said the deal will reduce the number of frivolous lawsuits in Oklahoma, which will help lower health care costs for all Oklahomans, recruit and retain Oklahoma doctors and bring more cost certainty to businesses in our state, especially small companies.

“The collaboration that occurred between all interested parties to reach this landmark agreement is exactly the type of work the people of Oklahoma expect from their leaders,” said House Speaker Chris Benge, R-Tulsa. “This deal is a compromise, which means everyone didn’t get everything they wanted, but it represents true reform for our state.”

Under the compromise, House Bill 1603 will contain the following major provisions:

Vague noneconomic damages (so-called “pain and suffering” awards) would be capped at $400,000 outside of exceptional circumstances. In rare cases where the cap is lifted, any amount greater than $400,000 could be paid with a reinsurance policy the state would purchase. The bill creates a task force that will study the details of the policy and payment options prior to implementation.

The reinsurance policy would pay up to $20 million a year to injured Oklahomans in exceptional circumstances of gross negligence or severe disfigurement. It is estimated such a policy would cost less than $1 million annually for the additional protection.
In order to have access to the reinsurance policy, doctors are required by the legislation to carry at least $1 million in medical liability insurance, which covers the majority malpractice cases. There is currently no state minimum requirement for insurance coverage.

“This change places the burden on doctors to carry higher levels of insurance to further protect injured Oklahomans, but also adds some certainty to the system in rare catastrophic cases,” said Rep. Dan Sullivan, House author of HB 1603 and the bill’s chief negotiator from the House.

The policy is a unique agreement that gives physicians a hard cap for medical liability insurance purposes but allows Oklahomans who have extenuating circumstances to receive awards above the cap.

As a result of that compromise, insurers will be able to sell medical liability insurance to doctors at lower rates because they won’t have to build up enormous reserves to cover the rare “jackpot” award that would otherwise bankrupt the company.

One of the main reasons doctor’s insurance currently costs so much is the impact of frivolous lawsuits – even though 70 percent of medical liability claims were dismissed between 2004 and 2007, Oklahoma’s major doctor’s insurance company spent $50 million defending those cases.

That cost should be significantly reduced following passage of House Bill 1603, allowing for cheaper insurance policies to be sold to doctors.

In turn, those lower insurance rates will make it easier to attract doctors to currently underserved areas of Oklahoma, particularly rural communities. Today, women all across Oklahoma often have to drive to Oklahoma City or Tulsa to deliver a baby because few local doctors will perform that service due to litigation threat and high insurance rates.

“Doctor and nurse shortages are a serious problem in Oklahoma. We have some of the best physician training in the country, but other states are stealing our doctors away,” said Rep. Doug Cox, an emergency room doctor in Grove. “We are training—often with taxpayer dollars—doctors who are being recruited to lawsuit reform-friendly states, it is a fact. This bill will give those physicians a chance to practice in this state.”

House Bill 1603 also contains other reforms. In the area of class-action lawsuits, court shopping for class-action suits would be restricted, and attorney fees could be reviewed.
The bill also requires an expert to certify that a professional negligence case has merit before it can proceed. That requirement would be waived for plaintiffs who cannot afford the costs associated with finding an expert.

Senator Jay Paul Gumm said he's pleased that a tort reform provision he had authored for several years was included in the lawsuit reform bill. The provision would prevent a gun manufacturer from being sued if their product was used in the commission of a crime.

“These are products that are legally manufactured and owned, and it just makes good sense to make sure this liability protection is part of our state law,” Gumm said. “We’ve come close to getting this proposal to the governor’s desk in the past, only to see it fall victim to politics. I’m very optimistic about its chances this year.”

The Democrat from Durant said most firearm manufacturing facilities are located in states hostile to gun ownership. In contrast, Gumm pointed out most Oklahomans are strong advocates of the 2nd Amendment right to own firearms.

“Whether it is for hunting or for self-protection, owning firearms is part of Oklahoma’s heritage and culture,” Gumm said. “In addition, we have one of the best gunsmith programs in the nation at Murray State College.”

Gumm said firearm manufacturing is a multi-billion dollar industry with high-paying jobs. Tort reform protecting manufacturers coupled with the program at Murray State College would give Oklahoma a greater edge in attracting those jobs.

“I’m excited about the possibility we have to attract an important manufacturing facility to our state. The jobs and revenue such a facility would create would ultimately benefit all of Oklahoma.”

Share |

Lawsuit Reform Package Agreement Seen

House and Senate Republican leaders claim today agreement has been reached on what they say is a landmark comprehensive lawsuit reform package.

"I believe we can now say Oklahoma is open for business," said Senate President Pro Tempore Glenn Coffee, R-Oklahoma City.

The agreement follows long discussions that did not include Governor Brad Henry; those involved said he has been kept posted on the details of the negotiations.

In a statement, Henry called the bill "perhaps the most comprehensive tort bill in state history" and said it is similar to the compromise proposal he made in 2007 but was unable to reach a consensus for. "I will be reviewing the measure in greater detail in the days to come, but based on my initial reading of it, I believe this is a strong piece of reform legislation," he said.

Among the bill's changes are a redefining of what constitutes a frivolous lawsuit and strengthening of summary judgment rules to make it easier for a judge to dismiss a lawsuit that has no merit before it goes to trial.

The bill also makes changes to joint and several liability guidelines in which an injured person can recover all his damages from any defendant regardless of their individual share of the liability.

It reinstates a certificate of merit requirement for injured people who want to file professional malpractice lawsuits but broadens it beyond a similar rule that was ruled unconstitutional by the Oklahoma Supreme Court in 2006. That measure dealt exclusively with medical malpractice lawsuits and the high court said it was an unconstitutional special law.

It also ruled the requirement that a medical malpractice claimant obtain a professional's opinion at a cost of up to $5,000 was an unconstitutional monetary barrier to the courts.

The latest proposal requires certificates in any lawsuit alleging professional negligence by physicians, attorneys, accountants and others, a requirement vetoed by Henry last year. Those who cannot afford the cost of a certificate can obtain one for free under existing pauper guidelines, officials said.

The measure would cap non-economic damages, also known as pain and suffering, at $400,000 but allow a judge or jury to waive the cap in cases of gross negligence or catastrophic injury. Supporters had originally wanted a cap of $300,000 with no waiver guidelines.

The bill requires the state to explore the purchase of a $20 million insurance policy by May 1, 2011, to create an indemnity fund for non-economic damages in excess of $400,000.

It also makes a variety of changes to class-action lawsuit guidelines but does not include a proposal opposed by mineral owners that would require them to "opt-in" to class-action lawsuits to become eligible to recoup unpaid royalties. Under existing law, class members are automatically included in a class-action lawsuit unless they notify the court they want to "opt out."

Some details from www.tulsaworld.com.

Share |

Schwartz Criticizes Henry On Lawsuit Reform

Rep. Colby Schwartz today challenged Governor Henry's claim that he supports efforts to rein in frivolous lawsuits.

“It seems Governor Henry supports reducing frivolous lawsuits until the moment an actual bill reaches his desk to do that – and then he immediately vetoes it,” said Schwartz, R-Yukon. “It’s unfortunate that the governor continues to oppose common-sense reforms that would target bogus lawsuits while preserving access to the courts for legitimate claims.”

House Bill 1570, by Schwartz, would have simply required an expert opinion confirming professional negligence before a lawsuit can be filed.

Henry vetoed the bill even though he signed similar legislation applying only to medical malpractice cases in 2004. That law was later thrown out by the state Supreme Court in 2006 because it was too narrowly tailored and applied to just one industry.

To resolve that problem, House Bill 1570 would require an expert opinion in all cases, regardless of industry.

“This legislation was clearly constitutional and would have been successful in driving down junk lawsuits based on the results of the 2004 law,” Schwartz said. “The governor knew this and still chose to side with special interests instead of working Oklahomans.”

Schwartz noted the 2004 law resulted in a significant decline in lawsuits. In 2007, officials with Oklahoma City-based Physicians Liability Insurance Company (PLICO) said the number of lawsuits filed against physicians in Oklahoma dropped roughly 40 percent after the law went into effect, according to The Journal Record.

Share |

Dueling Groups Oppose, Support Glenn Coffee

ActionPlanOK has begun airing television spots in Oklahoma City suggesting trial lawyers are behind an advertising campaign launched by Citizens For Transparency that questions Senate President Pro Tem Glenn Coffee’s finances.

“It’s no surprise now that courageous leaders who stand up for lawsuit reform, like Sen. Glenn Coffee, are being personally attacked,” the spots say.

Patrick Lively, executive director of Citizens for Transparency, the group that paid for the anti-Coffee ads, said they have nothing to do with lawsuit reform.

“I have no comment on tort reform,” Lively said. “That’s not my issue.”

The Citizens for Transparency ads, which appeared in the Tulsa World and on Oklahoma City television, called for Coffee to disclose details of his campaign expenditures and a loan he used to pay back taxes. Citizens for Transparency has not revealed its financial supporters.

ActionPlanOK was formed about five years ago. Its directors include former Rep. Robert Worthen, R-Oklahoma City, Tulsa County Director of Development and Governmental Affairs Terry Simonson and Tulsa businessman Mike Arrington. Worthen’s son Trebor Worthen, also a former state representative, works for AH Strategies, which is a campaign consultant for many Republican legislators.

Coffee, however, is not an AH Strategies client, Worthen said.

Share |

Lawsuit Reform Bill Veto Override Fails

House Democrats voted today against an attempt to override the governor’s veto of a lawsuit reform bill.

Governor Henry vetoed House Bill 2458 last week, claiming the bill is unconstitutional.

The bill would require a plaintiff in a civil lawsuit for professional negligence to attach to the petition an affidavit attesting that a “reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant….constituted professional negligence.”

The affidavit must state that the plaintiff has consulted a qualified expert who has reviewed the available medical records and other facts, and that the qualified expert has provided a written opinion stating that the facts support a finding that the defendant was professionally negligent.

Rep. Colby Schwartz, author of the bill, called the legislation a meaningful step in reducing frivolous lawsuits in Oklahoma and criticized House Democrats for locking up on a bill that passed the Senate unanimously in its current form.

“The governor of Oklahoma does not get to decide if legislation is constitutional; that job is left to our court system,” said Schwartz, R-Yukon. “This bill would have cleared the courts of frivolous lawsuits to make way for those with legitimate cases, but instead House Democrats voted today to keep our court system clogged with expensive lawsuits without merit.”

This bill, unlike the narrowly tailored law struck down by the Supreme Court in 2006, includes all cases of professional negligence. The law previously deemed unconstitutional only included medical malpractice cases, which was too narrow under the state’s constitution.

In 2004, Gov. Brad Henry presented a lawsuit reform package that included a requirement of certificate of merit before proceeding with medical liability cases. In a press release the governor put out in January 2004, Henry said: “People shouldn’t have to hire an attorney and pay thousands of dollars to fight claims that have no merit. We must act decisively to eliminate frivolous lawsuits.”

Rep. Dan Sullivan, R-Tulsa, said he couldn’t agree more with the governor’s statement in 2004.

“But unfortunately, Gov. Henry has done nothing but reject every lawsuit reform measure we have sent to his desk since he made campaign promises to bring changes to our state’s tort system,” said Sullivan. “The governor has made it clear that as long as he is in office, he will reject any and all reasonable lawsuit reform measures sent his way.”

Share |

Schwartz: Lawsuit Reform Veto Override?

Governor Henry vetoed a lawsuit reform bill and its author says he may attempt to override the veto.

Rep. Colby Schwartz, R-Yukon, said Henry sided with trial lawyers again in vetoing the lawsuit reform bill, HB 2458.

“It is not surprising to see, once again, Gov. Henry sided with trial lawyers over Oklahomans today with his veto of a reasonable lawsuit reform measure. This bill would have cleared the court of frivolous lawsuits, making them more accessible for those injured as a result of proven professional negligence, not less as Gov. Henry claims. We will look at the possibility of a veto override.

Share |

Lawsuit Reform Bill Goes To Henry's Desk

Legislation requiring an expert opinion confirming professional negligence before a lawsuit can be filed is headed to the governor after final passage in the House today.

House Bill 2458 would require a plaintiff in a civil lawsuit for professional negligence to attach to the petition an affidavit attesting that a “reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant….constituted professional negligence.”

The affidavit must state that the plaintiff has consulted a qualified expert who has reviewed the available medical records and other facts, and that the qualified expert has provided a written opinion stating that the facts support a finding that the defendant was professionally negligent.

The bill would provide for dismissal of the suit without prejudice if the affidavit is not attached to the petition and also provides for an extension of time to file the affidavit.

The legislation allows that the affidavit would not be admissible in court.

“I have shown my commitment to reducing the cost of health care in our state, and cutting down on the number of frivolous lawsuits filed against doctors is a step in that direction,” said House Speaker Chris Benge, R-Tulsa. “We want to ensure our courts are reserved for lawsuits with merit, instead of cases that drive up malpractice insurance costs for doctors, which are then passed on to patients through rate increases for services.”

Share |

Jones: Henry Failed Lawsuit Reform Test

Republican State Chairman Gary Jones (pictured) today issued this statement: On the final week of the legislative session, Gov. Brad Henry rejected the legislature’s second lawsuit reform proposal of the year. And with the legislative session now wrapped up, it will be yet another year without lawsuit reform in Oklahoma.

“Governor Henry has effectively told the business community that Oklahoma is closed for business. Henry promised Oklahoma citizens Texas Plus tort reform, and now he won’t even sign Texas Lite reform, which is essentially what this compromise was. I would ask Gov. Henry how he expects us to compete with Texas and other surrounding states without reform?”

The compromise proposal was developed by physicians and business groups, and addresses the governor’s concerns about Senate Bill 507 (which Henry vetoed) as outlined in a recent memo from State Treasurer Scott Meacham.

“If we want to stop being at the bottom of every list, we need tort reform. Unfortunately, we have a Governor who takes his marching orders from the trial bar, and who has once again ignored the calls from Oklahoma taxpayers of the need for tort reform.”

Share |

Lawsuit Reform Compromise? What Compromise?

Legislative leaders from the Oklahoma Senate and House of Representatives today disputed published comments by Governor Brad Henry that an agreement is near on a lawsuit reform compromise.

Henry recently vetoed Senate Bill 507, a bipartisan lawsuit reform bill passed by the Legislature. In the May 6, 2007, edition of The Sunday Oklahoman, Henry said he feels a compromise on lawsuit reform is "very, very close."

"Negotiations on lawsuit reform are nonexistent, one could even say they've broken down. The Legislature put a very good lawsuit reform bill on the governor's desk, but we haven't heard a peep from him since he vetoed it," stated Senate Co-President Pro Tem Glenn Coffee, R-Oklahoma City. "We're willing to talk to the governor if he gets serious about meaningful reform, but we're not going to let him water down the key reforms just for the sake of getting an agreement."

Share |

Henry Vetoes Lawsuit Reform Bill

Governor Brad Henry announced Saturday he has vetoed Senate Bill 507, the lawsuit reform bill passed by the House and Senate. Speaker Lance Cargill (R-Harrah) and Senate President Co-Pro Tem Glenn Coffee (R-Oklahoma City) both reacted to the veto.

"After campaigning for re-election as a moderate, this session we're seeing the reemergence of the liberal Brad Henry we all knew in the State Senate. If the governor isn't careful, he's going to get the nickname 'Governor No,' with all of the vetoes he has issued lately.

"It is ridiculous for the governor to claim he is trying to protect businesses. Business owners know the truth, and they wanted this reform. The governor spent the last two days attempting to water down this legislation.

"Where has the governor been the last four months? To renegotiate a complex and lengthy bill at the eleventh hour ignores the fact that this has been a topic at the Capitol for months.

"We know defenders of the status quo will come up with a long list of excuses to stop Oklahoma from moving forward. As House Republicans continue to champion much-needed reforms in areas like education, tax and civil justice, the governor has become a powerful defender of a detrimental status quo.

"In just the past several weeks, the governor has vetoed a conservative bipartisan budget, he's tried to stop important tax relief in its tracks, he killed pro-life reform, he opposed an independent outside audit of the Department of Corrections and now he has thwarted lawsuit reform.

"We want Oklahoma's second century to be better than its first. While the governor may want to keep us tied down with the failed policies of the past, we will double our efforts to move our state forward."

Coffee said, “This is one of the biggest flip-flops in Oklahoma political history. Today, the governor ignored his own promises by vetoing the genuine reforms he called for in 2004,” stated Senate Co-President Pro Tem Glenn Coffee, R-Oklahoma City. “To paraphrase Groucho Marx: If you don’t like Brad Henry’s stated principles on an issue, don’t worry, he has others,” he said.

“The governor missed a grand opportunity to send a message to the nation that Oklahoma is pro-jobs, pro-doctor, and pro-business,” Coffee continued. “Instead, he sent a message that millionaire trial lawyers are still running the show.”

In 2004 Henry promised to bring “Texas-Plus” lawsuit reform to Oklahoma – and even campaigned in favor of lawsuit reform during last year’s governor’s race. SB 507 contained 18 of the 28 areas of lawsuit reform Henry called for in 2004.

Share |

NRA Backs Lawsuit Reform Measure

A comprehensive lawsuit reform bill is gaining momentum with a key endorsement by the National Rifle Association, the Senate’s co-president pro tempore said Tuesday.

"The NRA’s endorsement of SB 507’s liability protection for firearms and ammunition manufacturers has added to the momentum for meaningful lawsuit reform this year," stated Senate Co-President Pro Tem Glenn Coffee, R-Oklahoma City. "The NRA’s support should ensure additional votes for SB 507 from rural Democrats who support Second Amendment rights."

The bill passed the House today 57-39.

Share |