January 22, 2007

As we've had occasion to note a number of times in the past (e.g. here, here, and here) one of the weaker (though still useful) procedural reforms in medical malpractice litigation is a requirement that a plaintiff's lawyer obtain a "certificate of merit" from an appropriate medical expert before proceeding with a suit. So modest is this particular reform, and so broadly acceptable in principle to all but diehards of the plaintiff's bar, that even the presidential ticket of John Kerry and John Edwards was willing to endorse it.

Which still doesn't mean organized trial lawyerdom is going to sit by idly while it gets adopted by state after state. In Oklahoma, they've now persuaded the state supreme court, with only one dissenting vote, to strike down the certificate-of-merit law enacted by that state's legislature as inconsistent with the state constitution. George Wallace discussed the ruling while guestblogging over the holiday at Overlawyered, and Eric Turkewitz at New York Personal Injury Law Blog is among many trial lawyers jubilating at the news.

More: Eric Turkewitz writes to say:

Jubilating is too strong a word. The OK decision was based on the peculiarities of the OK constitution and is not applicable in other states.

NY, where I practice, has a certificate of merit law for med mal cases (signed by attorney, not doctor), which is the majority of my practice. I have no problem with it since consultation with an expert should take place anyway before suit, if possible.

Disclosing the name of the doctor, however, is another matter altogether.