Oklahoma Medical Malpractice Laws

A look at the Oklahoma medical malpractice lawsuit filing deadline, and the "affidavit of merit" that must be filed alongside most of these lawsuits.

By , J.D.

Before you decide to file a medical malpractice lawsuit in Oklahoma, be aware that these cases are notoriously complex. Strict procedural rules need to be obeyed, volumes of medical records need to be sifted through and analyzed, and the plaintiff's "burden of proof" is substantial. In this article, we'll take a look at the Oklahoma statute of limitations deadline for medical malpractice lawsuits, the state's "medical review panel" requirement, and the cap on damages in these kinds of cases.

The Oklahoma Medical Malpractice Statute of Limitations

If you are thinking about filing a medical malpractice lawsuit in Oklahoma, the first thing you need to be aware of is the statute of limitations. This is a state law that puts a strict limit on the amount of time you have to get your case started in the state's civil court system. In Oklahoma, getting a medical malpractice lawsuit started means filing not just the initial complaint, but also an affidavit in which the plaintiff states that he or she has consulted an expert medical witness who believes that the defendant's conduct amounted to medical malpractice (more on this in the next section).

Now, what does the statute of limitations say? Oklahoma, like many states, has passed a statute of limitations that applies specifically to medical malpractice lawsuits. Oklahoma Statutes section 76-18 says "An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state…shall be brought within two years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence," of the existence of the case.

Keep in mind that if you did not discover right away that a medical error was committed, as the plaintiff you have the burden of proving that you couldn't have discovered it even through the "exercise of reasonable diligence."

Having read all of this, you may be wondering what happens if you try to file your medical malpractice lawsuit after Oklahoma's statute of limitations deadline has already passed. In that situation, it's a safe bet that the doctor or health care facility you're trying to sue will file a legal motion asking the court to dismiss the case, the court will grant the request, and that will be the end of your lawsuit. So, it's easy to see why it's important to pay attention to the statute of limitations as it applies to your specific situation.

The "Affidavit of Merit" in Oklahoma Medical Malpractice Claims

In any Oklahoma civil lawsuit (including a medical malpractice lawsuit) in which the plaintiff is required to use an expert witness's testimony to establish negligence, Oklahoma Statutes section 12-19.1 says that the initial complaint (the document that starts the lawsuit) must be accompanied by an affidavit in which the plaintiff (or more accurately, the plaintiff's attorney) swears under oath:

  • that a qualified expert has been retained by the plaintiff, and has reviewed the allegations in the lawsuit, and
  • that the expert has stated a written opinion that a "reasonable interpretation of the facts supports a finding" that the defendant -- in the context of a medical malpractice case, that's the health care provider who treated the plaintiff -- was negligent, and that the case is "meritorious and based on good cause."

If a medical malpractice lawsuit isn't accompanied by an "affidavit of merit" when one is required, the court will almost certainly dismiss the lawsuit "without prejudice," meaning the plaintiff gets a chance to re-file it. And the court will likely grant a 90-day extension to file the affidavit if the plaintiff can show "good cause" for an extension.

(Editor's note: Oklahoma's affidavit of merit requirement has been struck down by the state's highest court on a number of occasions, so stay tuned for legal challenges to this latest version of this procedural requirement.)

Oklahoma's Medical Malpractice Damages Cap

Like a number of states, Oklahoma has legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant's liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff's specific losses.

Before we get to what Oklahoma's law says, let's differentiate the two main types of medical malpractice damages: economic and non-economic.

Economic damages typically consist of payment of past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the malpractice.

Non-economic damages include compensation for things like pain and suffering, emotional distress, and the loss of enjoyment of life that result from the defendant's medical malpractice. Non-economic damages are said to be more "subjective" from plaintiff to plaintiff, and they're not so easy to capture with a dollar amount.

Oklahoma's damages cap applies only to non-economic damages. Under Oklahoma Statutes section 23-61.2, non-economic damages are capped at $350,000 in all civil cases seeking compensation for injury, unless the case involves wrongful death or the court finds "clear and convincing" evidence that the defendant acted with:

  • gross negligence
  • reckless disregard for the rights of others
  • fraudulent intent, and/or
  • with malice or the intent to cause harm.

This article provides a brief summary of some of the Oklahoma laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Oklahoma medical malpractice attorney will have the answers.

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