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Ben Glass
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Oklahoma Supreme Court Throws Out Medical Malpractice Affidavit Requirement

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Virginia medical malpractice law requires that before serving a medical malpractice lawsuit on a Virginia doctor the plaintiff or his attorney must have in his file a signed “Certification of Merit” from an expert witness that says, in effect, that the case is valid.

The Oklahoma Supreme Court has recently thrown out a similar requirement in that state on the basis that the requirement, applicable only to medical malpractice cases, violates the State’s Constitution. In the Court’s opinion, it noted that the Oklahoma Law, “immediately divides toward victims alleging negligence into two classes – those who pursue a cause of action in negligence generally and those who name medical professionals as defendants.” This violates the Constitution’s requirement that prohibit any special Law “regulating the practice or jurisdiction of or changing the rules of evidence in judicial proceedings.”

The Court also found that the statute also creates an unconstitutional monetary barrier to court access. The Court noted the obvious when it said that, “the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low income plaintiffs.”

The most interesting the Supreme Court of Oklahoma noted that, “Tort reform statutes aimed at curbing medical malpractice legislation generally have not led to reduced malpractice insurance rates for doctors.”

Comment from Virginia Medical Malpractice Attorney, Ben Glass: It is time for Virginia to abolish its pre-suit certification requirement. There is absolutely no correlation between this requirement, which adds costs to the patient, and medical malpractice rates in Virginia. Moreover, defendants are not required to certify the merits of their defenses.