Republican tort reform bill still unheard Oklahoma Senate committee

Journal Record, The (Oklahoma City), Feb 16, 2007 by Janice Francis-Smith

Even Senate Co-President Pro Tempore Glenn Coffee doesn't believe his 182-page tort reform bill, Senate Bill 802, could be approved by the Legislature and signed into law in its original form. But he still expects to get several of the bill's provisions passed into law this year.

"The bill that I introduced in its entirety would probably not become law," Coffee, R-Oklahoma City, told reporters Thursday. "But it is a priority for us, and I intend to work hard to get as much meaningful reform as we can into a final bill. At this point I don't know what that (final bill) looks like."

Just as he did last session, Coffee, as the Republican leader in the Senate, introduced the Senate's omnibus tort reform bill, designed to protect businesses and physicians from certain legal attacks. SB 802 weighs in at 182 pages, and contained many of the same provisions Democrats fiercely attacked - and even some Republicans questioned - last time around.

More controversial provisions of the bill would require a plaintiff to travel out of state to file a lawsuit against a business headquartered out of state, would allow a court to deduct the amount a plaintiff has received from private insurance from a judgment against the defendant, and would impose a $300,000 cap on non-economic damages like pain and suffering in certain cases.

However, SB 802 has not been heard in committee yet. The tort reform measure that has gotten the most attention is SB 824 by state Sen. Susan Paddack, D-Ada. The measure attempts to address a December ruling of the Oklahoma Supreme Court, which struck down a 2003 state law requiring the plaintiff in a medical malpractice case to first obtain an affidavit from a medical expert asserting that the claim has merit.

Though designed to reduce the number of frivolous lawsuits filed against doctors, the law is unconstitutional because it arbitrarily treats medical malpractice cases as a special class, and acts as a barrier to the courts for poor people who cannot afford to obtain the affidavit, the court ruled.

Paddack's bill would require a plaintiff suing any kind of professional - not just physicians - to obtain what is known as a Certificate of Merit and allow the plaintiff up to 60 days after filing the lawsuit to produce the affidavit from an expert attesting to the lawsuit's merit. The court may grant an extension to allow the plaintiff up to a total of 90 days to produce the affidavit.

SB 824 went beyond answering the court ruling, however. The bill would also require a jury to find a defendant guilty of intentional or gross negligence before awarding punitive damages. In cases where the full award exceeds $100,000, the court would be able to allow the judgment to be paid in periodic installments. The plaintiff in a professional liability case would have to disclose to the court and the defendant any insurance payment or benefit they may have received to be applied to their medical costs.

SB 824 also does away with all prejudgment interest in any medical liability action, and requires all medical liability cases to be filed within eight years of the alleged injury.

The additional provisions of SB 824 are reminiscent of a few of the provisions contained in Coffee's SB 802. But while Democrats battled Republicans over tort reform last year, SB 824 was authored by a Democrat and easily passed out of the Senate Judiciary Committee, with only one of the committee's eight members voting against the bill.

Though Coffee said SB 824 in its current state does not represent the kind of comprehensive tort reform Republicans want to see passed this year, he was heartened by the bill's success. By passing the measure, Senate Democrats may have opened the door for a more extensive tort reform measure.

"Especially now that we have a bipartisan bill that has already made it out of Judiciary, I doubt my bill (SB 802) will get a hearing in Judiciary," Coffee said. "There's really no reason to get into a fight on the whole bill and kill the issue for two years when Senator Paddack has a work in progress, and we're happy to work with her."

Though tort reform has long been a partisan issue dividing Democrats and Republicans, the even split of votes in the Senate this session has greatly altered the political landscape and makes it somewhat difficult to predict how the situation will turn out, Coffee said.

In past years, the Democrat leadership in the Senate and the Republican leadership in the House have each authored a tort reform bill. But when the measures were sent to the opposite chamber for approval, as is required by the legislative process, the party leaders simply voted to gut the other party's bill and replace the measure with their own party's bill. Typically, both measures would die at the end of the session.

Such shenanigans will be more difficult to pull off now that Democrats and Republicans share power in the Senate. The power- sharing agreement Coffee and Senate President Pro Tempore Mike Morgan, D-Stillwater, have worked out does allow each party to introduce up to three bills without the other party's consent. However, once these controversial bills reach the floor of the Senate, the measures will die unless approved by at least 25 members. With just 24 Republicans and 24 Democrats in the Senate, all bills will require a bipartisan vote to advance.