Virginia: Medical Malpractice – a Lawyer’s Certification

Virginia: Medical Malpractice – a Lawyer’s Certification

Va. Code §8.01-20.1 and §8.01-50.1 impose expert certification requirements on medical malpractice victims. However, the Oklahoma Supreme Court struck down as unconstitutional a “medical expert affidavit” statute in Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. Dec. 19, 2006) and a legal expert affidavit statute in Wall v. Marouk, 302 P.3d 775 (Okla. Jun. 4, 2013).

“Rather than reducing the [claimed[ problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’ claims based solely on procedural, rather than substantive, grounds.” Zeier, 152 P.3d at 869. “Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claimants interjects a degree of arbitrariness which sabotages equal access to the courts.” Id. at 874.

“A statute that so conditions one’s rights to litigate impermissibly denies equal protection and closes the courthouse doors to those financially incapable of obtaining a pre-petition medical opinion.” Id. at 873. Therefore, the Oklahoma Supreme Court in Zeier concluded the medical expert affidavit requirement was “an unconstitutional special law” and “the requirement that a medical malpractice claimant obtain a professional opinion that the cause is meritorious at a cost of between $500.00 and $5,000.00 creates an unconstitutional monetary barrier to court access”. Id. at 862-63, 874.

Similarly, in 2009 the Supreme Court of Washington en banc found unconstitutional a special statute “requiring medical malpractice plaintiffs to submit [an expert] certificate prior to discovery”. Putman v. Wenatchee Valley Med. Ctr., 266 P.3d 374, 377 (Wash. Sup. 2009). “The court must strike down this law because it violates the right of access to courts and conflicts with the judiciary’s inherent power to set court procedures.” Id. at 380.

The Washington Supreme Court in Putnam quoted: “’The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803).” Id. at 376 (emphasis added).