“OKLAHOMA LAWSUIT REFORM ACT “2009”

1. “OKLAHOMA LAWSUIT REFORM ACT “2009” Presented By: D. Lynn Babb PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P 1109 N. Francis Oklahoma City, Oklahoma 73106-6813 www.piercecouch.com Tel: (405) 235-1611 Fax: (405) 235-2904

2. INTRODUCTION • In the 2009 legislative session, Oklahoma’s Legislature passed what has uniformly been identified as the most comprehensive lawsuit reform ever attempted in this state. • The Act is scheduled to take effect November 1, 2009.

3. PURPOSE OF PRESENTATION • To clarify what the Legislature accomplished; • What the Legislature did not accomplish; and • How the new law compares with existing law.

4. Review of Comprehensive Lawsuit Reform Act of 2009 • Creates 12 O.S. § 19. • Applies to actions for “professional negligence” or malpractice. • To comply with this section, a plaintiff must attach to his petition an affidavit attesting: • That a qualified expert has reviewed the facts of the plaintiff’s claim; • That the plaintiff has obtained a written opinion from a qualified expert that, in the expert’s opinion, a reasonable interpretation of all the facts in the available materials, including medical records, supports a finding of malpractice on the part of the defendant; • The claim is meritorious and based on good cause, based on the review and consultation with the qualified expert; and • Current Oklahoma Law does not require any affidavit or pre-filing expert review.

5. Review of Comprehensive Lawsuit Reform Act of 2009 • Written opinion must include: • “The acts or omissions” of the defendant • Why such “acts or omissions” constitute malpractice • Written opinion is not admissible at trial • If the plaintiff files his petition without the required affidavit and the court does not grant an extension of time, then the court must, upon motion of the defendant, dismiss the action without prejudice to its refiling. • Court may grant extensions: • Upon motion of the plaintiff • For good cause shown • Upon motion of the defendant • If the plaintiff fails to file this affidavit the court must dismiss the action with prejudice • Unless the plaintiff can show good cause

6. Review of Comprehensive Lawsuit Reform Act of 2009 • Upon a written request of defendant: • A plaintiff must provide, within ten (10) days, a copy of the written report; and • An authorization for the release of medical records for the five (5) years prior to the incident. • A plaintiff may request an exemption to the affidavit requirement based on indigency.

7. Review of Comprehensive Lawsuit Reform Act of 2009 • Creates 12 O.S. § 140.2. • Codifies existing Oklahoma case law on forum non conveniens. • Criteria • Alternate forum exists • Alternate forum provides adequate remedy • Substantial hardship in present court • Alternate forum can exercise jurisdiction • Private and public interests support case moving to alternate forum • Would stay, transfer or dismiss to prevent duplication or proliferation of litigation.

8. Review of Comprehensive Lawsuit Reform Act of 2009 • Creates 12 O.S. § 192. • The Supreme Court to promulgate rules defining indigency. • Determination of indigency made by the Chief Judge of the Judicial District or designee based on the plaintiff’s application rules that will be promulgated by Supreme Court.

9. Review of Comprehensive Lawsuit Reform Act of 2009 • Creates 12 O.S. § 683. • Amends when an action may be dismissed without prejudice to a future action by the plaintiff or the court.

10. Review of Comprehensive Lawsuit Reform Act of 2009 • Changes plaintiff’s ability to dismiss a case under 12 O.S. § 684. • Prior law plaintiff could dismiss the case at any time prior to the commencement of trial. • In the revised section plaintiff can dismiss before pretrial. • After the pretrial the action can only be dismissed by agreement of the parties or by the court. • If a plaintiff fails to prosecute or comply with the provisions of the law or any order of the court, a defendant may move for dismissal of the action or any claim.

11. Review of Comprehensive Lawsuit Reform Act of 2009 • Applies to counterclaims, cross-claims, and third-party claims. • May dismiss without court intervention extends to the time any responsive before pleading is served or, if no responsive pleading, then before the introduction of evidence at trial or a hearing. • The most significant change: • When plaintiff has dismissed an action; • Brings another lawsuit with the same claim; • Court may order an award of the defendant’s costs for the previously dismissed action; • The court may stay the newly filed proceedings pending payment of costs.

12. Review of Comprehensive Lawsuit Reform Act of 2009 • Amends 12 O.S. § 727.1. • There is no change to postjudgment interest calculation. • Amends the calculation of prejudgment interest; • Verdicts entered after November 1, 2009; • Personal injury; • Interest is calculated beginning twenty-four (24) months after commencement of the suit. • No prejudgment interest for personal injury cases for the first twenty-four months the case is in progress. • Computation of prejudgment interest rate is different: • Interest not based on the prime rate plus two percent; • Equal to the average U.S. Treasury Bill rate of the preceding calendar year.

13. Review of Comprehensive Lawsuit Reform Act of 2009 • Amends12 O.S. § 990.4. • Amends several procedures regarding appeal bonds. • Twenty-five million dollar ($25,000,000) maximum on appeal bonds. • If judgment debtor attempts to intentionally dissipate or divert assets court is permitted to enter appropriate orders to prevent from occurring. • Can order security in the full amount of judgment without regard to limits. • New bond limit for tobacco claims against a signatory or affiliate of the Master Settlement Agreement dated November 23, 1998. • New bond is the lesser of the: • Amount of the judgment, exclusive of interest and costs; • Ten percent (10%) of the net worth of the judgment debtor; • Twenty-five million dollars; • Whichever is less. • For judgments entered after November 1, 2009, no appeal bond will be required for appeals of punitive damages awards.

14. Review of Comprehensive Lawsuit Reform Act of 2009 • Amends 12 O.S. § 993. • Allows for interlocutory appeals of trial court orders. • Denying “a motion in a class action asserting lack of jurisdiction because an agency of the state has exclusive or primary jurisdiction of the action or a part of the action; • Asserting that a party has failed to exhaust administrative remedies; • Only if the class is subsequently certified and only as part of the appeal of the order certifying the class action.”

15. Review of Comprehensive Lawsuit Reform Act of 2009 • Creates 12 O.S. § 994.1. • Providing a calculation method and authorizes recovery for the Oklahoma Health Care Authority and for Medicaid regarding payments made by third-party payors: • Recovery against the party that received payment; • Recovery against the third-party payor; • Medicaid payments that are less than the judgment or settlement amount; • If the Oklahoma Health Care Authority insures procurement costs because of opposition to its recovery; • It also includes a Medicaid recovery worksheet, which provides a formula to decide how much a judgment or settlement amount will be in each of the situations.

16. Review of Comprehensive Lawsuit Reform Act of 2009 • Amends 12 O.S. § 2004. • In addition to several grammatical changes, this section provides that failure to have proper service of process within 180 days of filing court will deem the action to have been dismissed without prejudice as to the defendant not yet served, unless the plaintiff can show good cause as to why service was not obtained.

17. Review of Comprehensive Lawsuit Reform Act of 2009 • Amends 12 O.S. § 2008. • Prior law a plaintiff seeking more than $10,000 of damages would simply state they demanded relief in excess of $10,000 without stating an exact amount. • Plaintiffs demanding relief in excess of $75,000 shall state they demand relief in excess of $75,000 without stating an exact amount of money. • For demands equal to or less than $75,000 plaintiff must specifically state the amount of damages sought. • Simplifies the removal process, since the plaintiff will have to allege the amount in controversy requirement in state court pleadings.

18. Punitive Damages, Frivolous Lawsuits & Class Actions • Amends 12 O.S. § 2009. • Requires pleadings to specify whether punitive damages, if sought, exceed $75,000. • Allows a defendant to file a Motion to Clarify Damages prior to pretrial. • Purpose of this motion is to require the plaintiff to show: • Preponderance of the evidence; • Amount of damages, if awarded, will not exceed $75,000 or more; • If the court determines that the damages are the amount required for diversity, then the plaintiff must amend his or her pleadings to reflect that finding.

19. Punitive Damages, Frivolous Lawsuits & Class Actions • Amends 12 O.S. § 2011.1. • New definition of “frivolous”. • Revises the definition of “frivolous” in the context of a Motion to Dismiss an action or an Motion for Summary Judgment or subsequent to adjudication on the merits. • “Frivolous” means the claim or defense was knowingly asserted in bad faith, or without any rational argument based on law or facts to support the position of the litigant or to change existing law. • The section DELETES from the definition that the claim or defense “was unsupported by any credible evidence, was not grounded in fact, or was unwarranted by existing law or good faith argument for the extension, modification, or reversal of existing law or the establishment of new law.

20. Punitive Damages, Frivolous Lawsuits & Class Actions • Amends 12 O.S. § 2023. • Requires that trial court orders certifying classes after November 1, 2009 shall define: • Class and the class claims; • Issues and defenses. • Class notices must clearly and concisely state in plain, language: • The nature of the case; • The definition of the class; • How the class member can have separate counsel enter an appearance; • How a class member can request to be excluded; • Settlement or judgment will include all member of the class, unless they have requested exclusion.

21. Punitive Damages, Frivolous Lawsuits & Class Actions • For actions filed after November 1, 2009, class membership in Oklahoma will be limited to people and entities that are residents of Oklahoma. • If the action is based on property, then nonresidents can be class members; or • If a significant portion of the nonresident’s cause of action arises in Oklahoma, then nonresidents can be class members. • There is a new subsection which codifies existing Oklahoma law regarding settlements, voluntary dismissals, and compromises. There is also a codification of existing Oklahoma law regarding the awards of class counsel fees and the award of prevailing party attorney fees and costs.

22. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Adds to 12 O.S. § 2056. • Provides for summary judgment practice for both plaintiffs and defendants. • Motion for Summary Judgment may be filed at any time after twenty (20) days have passed from commencement of the action or the opposing party serves a Motion for Summary Judgment. • A party against whom relief is sought may move at any time for a Motion for Summary Judgment. • Motion for Summary Judgment must be served at least (10) days before the day set for the hearing. • If Summary Judgment is not rendered on the whole action, the court should determine what material facts are not at issue. • A supporting affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affidavit is competent. Also, must be attached if referenced in the Motion for Summary Judgment.

23. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Amends 12 O.S. § 2702. • Regarding expert witness testimony. • Expert Testimony must be: • Based upon sufficient facts or data; • Product of reliable principles; • Principles and methods have been reliably applied to the facts of the case; • Codification of generally existing practice and case law.

24. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Adds to 12 O.S. § 2703. • No part of § 2703 is repealed. • Adds a probative-value-vs.-prejudicial-effect clause regarding expert opinion testimony based on facts or data which are inadmissible. • States: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.”

25. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Adds to 12 O.S. § 3226. • General provisions governing discovery. • Revision does not delete anything from the present § 3226, although it renumbers some provisions. The revision adds a new provision entitled “Initial Disclosures.” • Mandates, with exceptions cited below: • A party must provide to other parties a computation of any category of damages claimed by the disclosing party; • Make available all non-privileged or protected material on which the computation was based. • Eight (8) exceptions for the initial disclosure provision. • An action for review on an administrative record; • An action to enforce or quash an administrative summons or subpoena; • A proceeding ancillary to proceedings in other courts; • An action to enforce an arbitration award. • The other exceptions involve either an action by the United States or criminal convictions/inmate actions.

26. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • “Time for Disclosures” provision. • Mandates that these disclosures shall be made: • At or within sixty (60) days of service; • Unless a different time is set by stipulation or court order or unless the party objects that disclosures are not appropriate. • Disclosures to be based on information then reasonably available whether or not the party has completed its investigation of the action.

27. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Adds to Oklahoma Uniform Commercial Code 12A O.S. § 1-304, regarding obligation of good faith in contracts. • Breach of the obligation of good faith imposed by OUCC shall not give rise to a separate tort cause of action.

28. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Creates 20 O.S. § 56. • Mandates that the Oklahoma Supreme Court, before December 1, 2009, establish qualification for determining indigency of a plaintiff claiming an exemption from providing an affidavit of merit in a civil action for professional negligence.

29. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • 23 O.S. § 15 revises joint and several liability. • Combines what is presently Section “B” and “C” into one section “B.” • Substantive change to the new section “B,”; • When “a joint tortfeasor acted with willful and wanton conduct…the liability for damages shall be joint and several as to any such tortfeasor.” • Section “D” does not apply to: • Actions brought by or on behalf of the state”; • Actions brought by the state or a political subdivision of the state; or • Actions in which no comparative negligence is found to be attributable to the plaintiff.

30. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Provides that in any civil action based on fault and not arising out of a contract, the liability for damages caused by two or more persons shall be several only; • Exception - if a defendant’s responsibility is determined to be greater than 50%, they shall be jointly and severally liable. • Exception - if the tortfeasor acted willfully, wantonly, or with reckless disregard, they will be jointly and severally liable. • This section will not apply to actions brought on behalf of the state. • Applies to all civil actions based on fault and not arising out of contract that accrue on or after November 1, 2009.

31. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Creates 23 O.S. § 61.2. • In a civil action for bodily injury, the award for economic loss shall have no limitations. • An award for non-economic loss for: • Bodily injury claim; • Shall not exceed $400,000; • Regardless of the number of parties against whom the action is brought; or • The number of actions brought. • Exceptions to the $400,000 limit: • No limitation on the amount of non-economic damages; • A bodily injury claim resulting from professional negligence;

32. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability Exceptions to the $400,000 limit continued • Against a physician if the judge and jury finds by clear and convincing evidence that: • The injured person has suffered permanent and substantial physical abnormality or disfigurement, loss of use of a limb, or loss of, or substantial impairment to, a major body organ; or • The injured person has suffered permanent physical functional injury which prevents them from being able to independently care for themselves and perform life sustaining activities; or • The defendant’s acts or failures to act were: • In reckless disregard for the rights of others, • Grossly negligent, • Fraudulent, or • Intentional or with malice.

33. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Exceptions also apply to bodily injury claims not resulting from professional negligence against a physician. However, the trier of fact is required only to find a preponderance of the evidence (as opposed to clear and convincing evidence) when: • The injured person has suffered permanent and substantial physical abnormality or disfigurement, loss of use of a limb, or loss of, or substantial impairment to, a major body organ; or • The injured person has suffered permanent physical functional injury which prevents them from being able to independently care for themselves and perform life sustaining activities; or • The defendant’s acts or failures to act were: • In reckless disregard for the rights of others, • Grossly negligent, • Fraudulent, or • Intentional or with malice.

34. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • In a bodily injury claim, the trier of fact shall return a general verdict accompanied by answers to interrogatories, which shall specify all of the following: • The total compensatory damages recoverable by the plaintiff; • That portion of the total compensatory damages representing the plaintiff’s economic loss; • That portion of the total compensatory damages representing the plaintiff’s non-economic loss; • Whether the injuries for which the plaintiff has been awarded compensation include damages for; • Permanent and substantial physical abnormality or disfigurement, loss of use of limb, or loss of, or substantial impairment to, a major body organ or system, or

35. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Permanent physical functional injury that prevents the injured person from being able to independently care for himself or perform life sustaining activities; and • If alleged, whether the conduct of the defendant was or amounted to: • Reckless disregard for the rights of others • Gross negligence • Fraud, or • Intentional or malicious conduct. • Limitation set shall be applied in a jury trial only after the trier of fact has made its factual findings and determinations as to the amount of the plaintiff’s damages. The jury shall not be instructed with respect to the limit on non-economic damages, nor shall counsel or witnesses inform the jury or potential jurors of the limitations. • This section does not apply to actions brought under The Governmental Tort Claims Act or actions for wrongful death.

36. Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability • Upon establishment of a Health Care Indemnity Fund, any damages awarded that exceed the limitation shall be paid by such fund. • Applies only to lawsuits claiming bodily injury due to professional negligence of a physician. • Provisions do not apply to any action that accrues before the date of the enactment of the Health Care Indemnity Fund. • Fund shall include professional liability insurance coverage requirements in an amount of not less than $1,000,000.00 for physicians, and shall maintain availability of $20,000,000.00 annually.

37. Child Restraints & Affordable Access to Health Care • 36 O.S. § 2211. • Creates the Health Care Indemnity Fund Task Force which shall study a mechanism for creating a health care indemnity fund for purposes of paying a portion of damages awarded or approved by the court in professional negligence cases against physicians. • Mandates this Task Force to study certain issues, mandates that there be eight members and who the members should be, how often the Task Force should meet etc.

38. Child Restraints & Affordable Access to Health Care • Provides a mechanism for creating a health care indemnity fund for purposes of paying a portion of damages awarded by the court or settled and approved by the court in professional negligence cases against physicians. It will study: • Funding, expenses and investments; • Capping the fund at a rate of twenty million dollars ($20,000,000.00); • Limiting damages award payments to: • Professional negligence cases against physicians where non-economic damage cap has been removed; and • Those damages in excess of $400,000.00 per occurrence • The purchasing of reinsurance; • Professional liability insurance coverage requirements; • Qualifications for coverage under the fund; • Applicant, compliance, payments and rating procedures; and • Any other issues necessary for creating a health care fund.

39. Child Restraints & Affordable Access to Health Care • Amends 47 O.S. § 11-1112. • Changes admissibility of non-use of child passenger restraint system • A violation is admissible as evidence unless the plaintiff is a child under sixteen years of age. • Every driver when transporting a child under six (6) years old, shall provide for the protection of the child by properly using a child passenger restraint system. • Prior to this amendment, evidence of a seatbelt use was not admissible

40. Child Restraints & Affordable Access to Health Care • Amends 47 O.S. § 12-420. • Allows evidence of failure to use seat belts unless the plaintiff is a child under sixteen (16) years of age. • Prior to this amendment, evidence of a seatbelt use was not admissible

41. Child Restraints & Affordable Access to Health Care • Amends 63 O.S. § 1-1709.1. • “Affordable Access to Health Care Act.” • In its definition of “Peer review information”: • Present law specifically excludes “credentialing or recredentialing data”; • Adds “credentialing data and recredentialing data” as a part of the definition; • The present law states that peer review information shall be private, confidential and privileged subject to specified exceptions • Exceptions are repealed in the new law.

42. Child Restraints & Affordable Access to Health Care • In a civil action in which a patient or his/her legal representative has alleged the patient suffered injuries as a result of negligence by a health care provider factual statements; • Presented during peer review • Utilized by the health care facility • Regarding the patient’s health care • From individuals who have personal knowledge of the facts and circumstances • Are not subject to discovery. • If it is alleged that the health care facility was independently negligent as a result of permitting the health care professional to provide health care services to the patient in the facility, the credentialing and recredentialing data, and the recommendations and actions taken as a result of peer review utilized in the health care facility are still subject to discovery. • This information shall not be admissible as evidence however until a judge or jury have first found the health care professional to have been negligent.

43. Uniform Emergency Volunteer Act • Amends 63 O.S. § 683.9. • Regarding the existence of a natural or man-made emergency. The amended provision of the statute regards the activation of the Emergency Operations Plan and the powers of the Governor. The amendment does not appear to be substantive and is essentially a grammatical change to the specific wording of the statute.

44. Uniform Emergency Volunteer Act • Amends 63 O.S. § 683.13. • Regarding emergency management. • Adds the sentence, “The term ‘emergency management worker’ shall not include any volunteer health practitioner subject to the provisions of the Uniform Emergency Volunteer Health Practitioners Act.”

45. Uniform Emergency Volunteer Act • Creates 63 O.S. § 684.15. • Defines the following words in reference to the UEVHP Act: • Disaster relief organization; • Emergency; • Emergency declaration; • Emergency management assistance compact; • Entity; • Health facility; • Health practitioner; • Health services; • Host entity; • License; • Person; • Scope of practice; • State; • Veterinary services; and • Volunteer health practitioner.

46. Uniform Emergency Volunteer Act • Creates 63 O.S. § 684.16. • UEVHP Act applies to registered volunteer health practitioner. • Who provide health or veterinary services; • In this state; • For a host entity while; • An emergency declaration is in effect.

47. Uniform Emergency Volunteer Act • Creates 63 O.S. § 684.17. • Allows the State Dept. of Health to regulate volunteer health practitioners while an emergency declaration is in effect. • Takes effect immediately upon the declaration of an emergency and is not subject to the Administrative Procedures Act. • A host entity that uses volunteer health practitioners to provide health or veterinary services in Oklahoma shall consult and coordinate with the Dept. of Health and comply with any other laws relating to the management of emergency health, including the Oklahoma Emergency Management Act of 2003 and the Catastrophic Health Emergency Powers Act.

48. Uniform Emergency Volunteer Act • Creates 63 O.S. § 684.18. • Qualifications of a volunteer health practitioner registration system. • That while an emergency declaration is in effect, the Dept. of Health may confirm whether volunteers are registered with a complying registration system. • Limits the confirmation to obtaining identities of volunteer health practitioners and whether they are in good standing and licensed. • Mandates that a registration system shall notify the person who made such a confirmation request of the identities of the volunteers and whether they are licensed and in good standing. • A host entity is not required to use the services of a volunteer health practitioner.

49. Uniform Emergency Volunteer Act • Creates 63 O.S. § 684.19. • Authorizes a registered volunteer health practitioner to practice in this state to the extent authorized by the UEVHP Act. • Volunteer health practitioner is not entitled to the protections of the UEVHP Act. • If the practitioner is licensed in more than one state; • Any license is suspended, revoked, or subject to an agency order limiting or restricting practice privileges; or • Has been voluntarily terminated under threat of sanction.

50. Uniform Emergency Volunteer Act • Creates 63, § 684.20. • Defines: • For purposes of this section: • “Credentialing” - Obtaining, verifying, and assessing the qualifications of a health practitioner to provide treatment, care, or services in or for a health care facility; and • “Privileging” - authorizing by an appropriate authority…of a health practitioner to provide specific treatment, care, or services at a health facility subject to list of limits enumerated in this subsection. • UEVHPA • Does not affect “credentialing” or “privileging” standards of a health facility; and • Allows a health facility to waive or modify those standards when an emergency declaration is in effect.