Patients who have been injured by medical negligence in Oklahoma may recover damages in a medical malpractice lawsuit. Several state laws apply to medical malpractice cases in Oklahoma, including time limits on the filing of such cases in court and rules that determine how damages are calculated and paid if an injured person proves his or her case. This article takes a look at a few key Oklahoma medical malpractice laws.
Oklahoma sets a time limit on filing medical malpractice claims. Known as the "statute of limitations," this time limit gives those injured by medical negligence in Oklahoma two years to file their claims in court.
When does the two-year time period begin? It can be difficult to determine. In most injury-related cases, the statute of limitations "clock" starts ticking on the date the injury occurs. If the injury can't be detected until after this date, however, the statute of limitations may start to run from the day the injured person knows (or should know) something is wrong, rather than the date the injury was inflicted. Because knowing how the statute of limitations applies can be particularly tricky in medical malpractice cases, you may want to talk to an Oklahoma medical malpractice attorney to understand how this time limit could affect your case.
Oklahoma "caps," or limits, damages in medical malpractice cases. Under Oklahoma Statutes section 23-61.2, non-economic damages are capped at $350,000, unless the case involves a wrongful death or the judge determines there is "clear and convincing" evidence that the defendant acted with:
Non-economic damages include compensation for things like pain and suffering, loss of enjoyment of life, and other more subjective losses stemming from the defendant's negligence. They do not include compensation for "economic" damages like the costs of medical bills, lost wages, and other measurable harm. There is no cap on "economic" damages in Oklahoma medical malpractice cases.
Oklahoma also uses a modified version of the "collateral source rule" in medical malpractice cases.
In most personal injury cases, the collateral source rule bars evidence that an injured person has access to other sources of funds, like insurance coverage, workers' compensation payments, or disability payments. The purpose of this rule is to focus the jury's attention on the negligence of the defendant and what, if anything, the defendant should pay, rather than on what resources the injured person has.
In medical malpractice cases in Oklahoma, however, the collateral source rule may not apply. Evidence of collateral sources of payment can be admitted in a med mal case when discussing damages awards, unless there is reason to believe the injured person won't actually be paid by the collateral source -- for instance, if a workers' comp claim has been denied or a lien exists against an insurance settlement.
For most medical malpractice lawsuits in which the plaintiff will use the testimony of an expert witness to establish negligence, Oklahoma Statutes section 12-19.1 says that the plaintiff must attach to the initial complaint an affidavit in which the plaintiff (usually through an attorney) swears that:
(Note: This affidavit of merit requirement has been struck down as unconstitutional twice in the recent past by the Oklahoma Supreme Court, so stay tuned for legal challenges to this latest version.)