Oklahoma Medical Malpractice Laws

A healthy relationship between a physician and a patient is important and has the power to significantly improve a patient's condition and quality of life. Patients place an unfathomable amount of trust into their health care providers, deeming them competent enough to view preceding medical records, accurately diagnose their illnesses and successfully perform operations that could pose a great risk to a patient's life if gone awry. Oftentimes, when the bond of trust is broken by medical malpractice, it's tough trying to determine what exactly to do next. Especially if a patient is planning to take a course of legal action in an attempt to receive proper compensation.

If you are contemplating pursuing a medical malpractice claim, it's in your best interest to initiate litigation as soon as possible. Each state, including Oklahoma, allows a limited amount of time to file a viable medical malpractice claim, and there are several steps you must take before getting your case started. This page will serve as a brief overview of what to expect when filing a medical malpractice claim; nonetheless, consulting with legal representation that has experience representing clients like you in Oklahoma would likely give you the most favorable results.

Suing for Medical Malpractice in Oklahoma

Your eligibility for compensation in a medical malpractice case rests on a variety of elements. Proving that you have been harmed due to the negligence of a health care provider is just one of the many components a plaintiff must consider when pursuing a malpractice claim. Building a feasible claim that will be upheld in a court of law usually requires the help of a seasoned attorney, medical experts, and your own coherent and detailed account of the event and your injuries inflicted by the defendant. Being aware of your own contributions to the harm done to you, if any, is helpful in determining an accurate and fair estimation of damages. Especially since Oklahoma allows the justification of modified comparative fault to be utilized, which allows a portion of a damage award to be deducted by the percentage of liability assigned by a court.

Many medical malpractice claims that are presented with sufficient evidence demonstrating apparent liability of the defendant are settled out of court before the case even has a chance to advance through the phases of litigation. All the more reason to garner any shred of information that could benefit your case. Collecting medical bills, receipts, prescriptions, documented time missed from work or any other valuable records can help your lawyer further build your case. Remember, medical malpractice claims are rarely simple and clean-cut, and proving that a negligent act was committed while simultaneously suggesting you get the compensatory damage awards you feel you deserve can be a trivial task. Choosing a skilled Oklahoma attorney will take some of the pressure off of you during these tumultuous times.

How long do I have to file a medical malpractice case in Oklahoma?

Each state has implemented a law that exists solely to regulate the amount of time an individual can file a civil lawsuit for medical malpractice, this is called the statute of limitations. In the state of Oklahoma, the statute is fairly short, granting patients two years to file a claim. However, the countdown doesn't begin until a plaintiff has discovered the injury, or should have reasonably discovered the injury. [1]

States who base their law off of the discovery rule - the countdown begins when a patient realizes they've been injured - recognize that it may take an extensive amount of time for the patient to realize they're been harmed. Some injuries have symptoms that take weeks, months, or even years to emerge. For instance, it's possible for a surgical staff member to leave a sponge in a patient after performing an emergency medical procedure. In these circumstances, the patient wouldn't know that a foreign object was in their body until they start experiencing symptoms indicating something is wrong. Actual previous cases similar to this situation have proved that it can potentially take a substantial amount of time for these symptoms to appear. Oklahoma legislators didn't intend to punish patients for the time they were oblivious to the harm inflicted on them, hence the creation of this rule. However, there are stipulations. If a person claims to file a claim with the justification of the discovery rule, they must prove that they weren't, and could not have been, aware of their injury within the two-year window designated by the state. If a person files a claim outside of the statute of limitations, their option for legal recourse is gone, meaning that their case will not be reviewed or considered in a court of law.

The state of Oklahoma also has distinguished rules for minors regarding the statute of limitations. A child under the age of 12, has seven years from the day the negligent act was committed to file a claim. If a minor is over the age of 12, the family has until the child's 19th birthday to take legal action.

Also, the window of time allotted to file a claim concerning the negligence of an Oklahoma state-level government, city, or county agency or employee is cut in half. A victim of medical malpractice only has one year after the date of the injury to file a written claim against any government entity within the state.

In Oklahoma medical malpractice cases, who is responsible?

Determining exactly who is liable in a medical malpractice case can be difficult. When most people visualize a medical malpractice case, they generally picture an injured patient up against an individual, usually a physician, by virtue of the physician's negligent act. Oftentimes this is an accurate depiction of a medical malpractice claim, but there are a numerous amount of people, organizations and any other entities that can be held accountable.

In Oklahoma, a health care provider is defined as anyone who is authorized to perform medical services or treatments on patients. Inclusive to physician assistants, nurses, dentists, optometrists, registered physical therapists, pediatric physicians, psychologists, chiropractors, dieticians, or a licensed hospital, clinic surgery center, physicians' professional corporation or a group practice that employs such individuals.

What if I am partially to blame? Can I still recover money for OK medical malpractice?

There are two categories that assigning fault fall into: pure comparative fault and modified comparative fault. Oklahoma follows the most common approach to liability, modified comparative negligence. States who abide by this doctrine cap a plaintiff's eligibility for compensation entirely at 50% or 51%. Of the 33 states that follow the modified version of comparative fault, Oklahoma is one of the 22 states (Connecticut, Hawaii, Delaware, Indiana, Illinois, Massachusetts, Iowa, Minnesota, Michigan, New Hampshire, New Jersey, Montana, Ohio, Nevada, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that abide by a 51% rule that requires that you only recover damages if a court finds that your contribution to an injury is 50% or less. The other states (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah and West Virginia) cap their recovery wages at 49% or less. So, if a plaintiff wishes to receive monetary compensation for harm done to them, his/her apportioned percentage of fault must be less than the defendant's percentage. [2]

For instance, envision consuming medication prescribed by your doctor that makes you incredibly ill. Prior to administering your prescription, the doctor asked you if you had any allergies or concerns with some of the active and inactive ingredients contained in your medication. Even though you're aware you have an array of allergies, you decide to risk it by failing to mention past reactions to certain substances. Now let's say the court receives this information and concludes that the doctor shouldn't have prescribed this type of medication due to your allergy, and assigns the defendant 50% of the blame, but also assigns you 50% of the blame for omitting information about your allergies. Since you were assigned half the liability for your injury, you would still be able to recover a portion of the damages because you weren't found to be more at fault than the defendant. If the court awarded $50,000 in damages, you would receive $25,000 after the modified comparative fault doctrine is enforced.

Some states follow the alternative approach to assigning fault, which is pure comparative fault. This system permits a plaintiff to receive damages despite even being 99% at fault for their injury. The states who adhere to this doctrine are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington. Skeptics of this approach claim that it opposes the mere nature of the legal system by granting plaintiffs rewards even if they heftily contributed to their own damages, hence the majority of the states, including Oklahoma's decision to adopt the modified version of pure comparative fault.

Are there medical malpractice recovery caps in Oklahoma?

If a patient obtains compensation for losses and damages through the court, Oklahoma law provides various types of damage awards a plaintiff can possibly receive: economic damages, non-economic damages, and punitive damages.

Economic damages refer to compensation for verifiable monetary losses. They are usually attributed to the health care provider's negligence. This includes medical expenses, days missed from work, loss of property, the cost of repair or replacement, the loss of future opportunities or money that the injury prohibited.

Non-economic damages are losses that are intangible and non-monetary. They are deemed as subjective from plaintiff to plaintiff and oftentimes difficult to assign a dollar amount to. Some examples of these are emotional distress, pain and suffering, inconvenience, disfigurement, loss of companionship, loss of consortium, and the degradation of the quality of life.

Punitive damages, also known as exemplary damages, are awarded when it's proven in a court of law that a health care provider acted in a way that was malicious, fraudulent or completely reckless. These damages aren't intended to compensate any loss, they are usually granted to set an example to the public and to punish the defendant.

Oklahoma law does require a limit or cap on the amount of damages awarded in a medical malpractice case, but it is only applicable to non-economic damages. A plaintiff can only receive up to $350,000 when seeking compensation for an injury unless the plaintiff can prove with “clear and convincing” evidence that the defendant displayed gross negligence, oppression, fraudulent intent, reckless disregard for the rights of others and with malice or the intent to cause harm. When those elements are proven within a court of law, only then will the cap be lifted. [3]

Expert witness reporting and testimony

In all medical malpractice cases, a testimony from an expert witness is obligatory. Oklahoma is a state that deems an expert witness as someone who is licensed to practice medicine or has other significant experience or training in any health care field in accordance to the claim and is actively practicing or retired from practicing health care in any services relevant to the medical malpractice case.

The testimony of an expert witness is necessary for a favorable trial in Oklahoma. The witness' testimony must coherently address that:

  • There was a breach of the standard of care due by the health care provider by an act (or failing to act) that caused the plaintiff's injury; and
  • The deviation from the standard of care was the direct cause of the injury

There are several steps victims of malpractice are ordered to take in Oklahoma before the phases of litigation begin. A patient must submit an “affidavit” alongside their claim attesting that they have previously met and discussed their circumstances with a qualified expert and that they have received a written opinion and signature from the expert. This opinion should include material containing applicable records, facts, or any other relevant material that clarifies the acts or omissions committed by the defendant constituted negligence. If a patient fails to submit the requisite affidavit, the court will either refuse to consider the case or grant the plaintiff an extension of time of generally 90 days to obtain one. [4]

Are some parties immune from medical negligence cases?

The state of Oklahoma has relinquished the ability of any entities to assert immunity in medical malpractice actions. Which implies that cities, towns, subdivisions, and counties and their respective employees shall still be held accountable for alleged negligent acts. Generally, compensation against these statewide entities doesn't exceed $25,000.

Settling medical malpractice cases in Oklahoma 

The defense agrees to negotiate a settlement only after it has been clearly established through the period of discovery and a medical expert that the case holds merit. This process occurs before the trial begins. Each party - the defendant and the plaintiff - and the attorneys representing them acquire goals they contend to be met during the negotiation period. The defendant's intent is to minimize the amount of money their client will have to pay and avoid going to trial where they will most likely lose and potentially provide additional fees for the trial and to the plaintiff. Alternatively, the plaintiff's legal representation determines if the settlement offered by the defendant is proportionate to the amount of damages experienced as a result of the defendant's negligence. If the plaintiff determines that the settlement offered isn't reasonable, then a medical malpractice attorney could possibly take their chances in court. Over 90% of medical malpractice actions settle out of court, and justifiably so. Neither side is eager to initiate an expensive and drawn out litigation process.

After a settlement has been reached, the time comes for the plaintiff to receive compensation for all damages deemed legitimate by the court. There are two common options for a plaintiff to collect money: lump-sum or structured payments.

Structured Settlement

This type of payment resolves a personal injury claim by permitting the plaintiff to receive periodic payments on a schedule arranged by the court. Either party can demand or offer this payment. Funded by annuities that aid in creating future payments for the winning party, this arrangement is recommended in circumstances involving minors who are need of long-term health care.

Lump-sum Payment

Alternatively, this payment arrangement refers to a plaintiff receiving the total amount of monetary compensation all at once, as opposed to periodic payments. Deemed as the most popular and least puzzling way to receive a settlement, plaintiffs and their legal representation generally, favor this method of collection. Plaintiffs who decide to receive a structured settlement often regret it in hindsight, due to the fact receiving the total amount of money at one time makes for more options in regards to planning funds and covering expenses for future medical care.

Litigating medical negligence cases in Oklahoma

Once a patient has discovered that they have been injured, the first step in advancing a claim is filing a complaint within the statute of limitations for a medical malpractice case in Oklahoma.

As mentioned earlier, the defendant and their attorneys usually agree to settle claims for medical malpractice before both the lawsuit goes to trial. However, in circumstances where both parties irrefutably fail to agree on a settlement, the case will proceed through the phases of litigation.

Initiating the case

If a patient faces this stage, presumably the defendant and plaintiff as well as their attorneys have failed to come to a reasonable agreement.

In Oklahoma, civil suit cases begin when the patient files a claim through the proper court. Various courts in Oklahoma hear different types of cases; The Oklahoma Supreme court is deemed the final court of appeals while the District Court is a court that handles general jurisdiction. Plaintiff's who wish to receive amounts over $10,000 will be under the jurisdiction of a District Court.

The complaint should contain a detailed account of the act of negligence or omission, their injury and damages directly stemming from its occurrence, and the eligibility for monetary relief.

Along with a claim, the state of Oklahoma requires that a patient submits an “affidavit.” It should be signed by a medical expert that has confirmed that they have met and mutually discussed the breach of the standard of care, how health care provider strayed from that standard, and that this breach directly affected the patient's condition resulting in an injury or death, further proving that the case is meritable.

The litigation process begins soon after the claim and affidavit has been appropriately submitted to the court, according to the statute of limitations. The defendant(s) has 20 days to file an answer to the complaint served by law enforcement, certified mail or a special process server unless the plaintiff grants an optional extension of 35 days. [5]

Preparing for litigation

After the defendant has sent their rebuttal to the complaint, both sides and their respective attorneys will prepare for litigation. They engage in something called the process of discovery, which consists of them swapping information referring to witness and evidence that may be presented and utilized in trial. This process was created to prevent “trial by ambush” - when one side is completely oblivious to the other side's witnesses and evidence, causing them to fail to obtain answering evidence. A statement called a “deposition,” is a method that many attorneys use during the discovery period. When attorneys use this mechanism, they basically obtain a statement from a person involved in the case outside of the courtroom; in rare cases this method could be permitted by a judge to use in the courtroom. It's presented in the form of a written transcript, a videotape or a combination of the two. An actual deposition involves a plethora of questions and answers between the involved parties and opposing counsel. In most instances, attorneys are present to prepare their clients for specific questions.

Several other methods of discovery include:

  • Subpoenaing or ensuring that the other side produces materials for inspection
  • Requiring that the opposing counsel have a physical examination to determine if the injury is genuine

Pretrial litigation

Both parties meet before the judge to mediate a settlement in this phase. This conference can be requested by either the plaintiff or the defendant. Issues, claims, admissions of fact, legal fees, witnesses and rulings are just a few of the array of topics discussed in this state of the litigation process. Deemed as one of the longest phases, settlement can take place during these mandated sessions. But, if parties aren't able to agree on an agreement, trial will most likely be the next step.

Trial

When both the plaintiff and the defendant haven't agreed on a settlement, the case will go to trial.

The trial process of a medical malpractice case is initiated when the jurors are selected. There are two ways jurors are selected. The first part is random selection. The state of Oklahoma randomly chooses names off of lists that the state keeps in the regular course of business. These lists consist of registered voters, people receiving unemployment, people who have driver's licenses etc. Once a person's name is pulled from one of these lists, they usually receive a notice in the mail informing them of the day they have to show up to court. Guidelines vary by state, but candidates are basically forced to attend. The second step of this process, called voir dire, is modified differently based on the courtroom and prospective judges. This is the time when the court and attorneys narrow down the pool of jurors to just 12 people. Leniency involving who asks questions to potential jurors, whether it be the judge or attorneys themselves also vary depending on the courtroom.

Judges will ask the potential jurors questions about their upbringing and beliefs. Attorneys on both sides have the capability of objecting jurors. Attorneys feel the need to object when they feel that a potential juror's background, belief or way of thinking would prejudice a case. For example, an attorney or judge wouldn't allow a member of the police force to sit in a case involving police brutality. Obviously, attorneys are barred from objecting jurors due to their race or gender.

Oklahoma law states that any citizen who is at least 18 years of age or older, holders of a state driver's license or a current identification license issued by the Department of Public Safety is eligible for serving as a jury. Exclusions of these standards are convicted felons or people with physical or mental infirmities. [6]

After the jury has been selected, opening statements from the plaintiff and defendant will begin. This is an opportunity for both parties to express how they feel the case will unfold. The main disputes and logistics of the case are explained during these statements.

After hearing the opening statements, it will be the plaintiff's turn to plead their case. During this time, witnesses ranging from common people to a medical expert will be called to sway the jury into believing that the health care provider was, in fact, negligent and that this negligence or omission was the proximate cause of the injury or fatality.

Once the plaintiff has finished presenting, the defense will argue their case. The defense will attempt to convince jurors that negligence played no part in the plaintiff's injury. They also would likely mention that the plaintiff had contributed to their own injury.

From there, both sides will disclose their closing arguments. These arguments provide attorneys with a final opportunity to persuade the jury. Oftentimes, lawyers save their most compelling and interesting information for closing arguments, since this is essentially the last thing jurors will hear and remember. Once both arguments are heard, the jury is free to deliberate and come back with a conclusion.

Medical malpractice cases are pretty lengthy, lasting one week or more. Depending on the state, some trials can only run for a half a day as opposed to a traditional full day, doubling the length of proceedings and piling on fees. Also, it's important to note that just because a trial is scheduled on a certain day, doesn't mean that it will happen that day. It's normal for trials to be frequently rescheduled. Unfortunately, some plaintiffs may assume that something abnormal is happening with their case, when in reality, small factors can influence the rescheduling of a trial.

Appeal

It's become increasingly common that the losing party of a medical malpractice civil lawsuit appeals the decision from the jurisdiction of a District Court to the State Supreme Court. An appeal is basically a request for a higher court to review and possibly alter the decision of a lower court. Mere dissatisfaction with the jury or judge's decision isn't enough to be granted an appeal; it has to be based on an error. They usually come in the form of legal mistakes made throughout the duration of a trial.

There are several elements that create the opportunity for an appeal. A few examples of these factors are errors in the application of the law, an unconstitutional ruling, jurisdictional issues, abuse of the trial court's discretion, evidentiary rulings etc.

In the state of Oklahoma, the losing party is required to go through several motions before being granted an appeal. First, an attorney must file a Notice of Intent to Appeal and a Designation of record with the Court of Criminal Appeals within 10 days of the party's unfavorable sentence. Additionally, a petition of error should be filed within 90 days of the formal sentencing. A document called “An Appellant's Brief,” describing in detail the alleged errors made by the court must be filed with the Court of Criminal Appeals within 60 days of the petition. From there, the criminal appeals court will highlight any issues within the submitted petition. If the court decides to grant the appeal, it could choose to reverse the whole decision or parts of it. Typically lasting 10-18 months, the appeals process can be a stressful time for the winning party, especially considering the possibility that the whole decision could potentially be reversed. [7]

How to find the best Oklahoma Medical Malpractice Lawyer for your Case

If you or a loved one has been injured as a result of the negligence of a health care provider, you probably have experienced the pain that comes with the broken bond of trust between a physician and a patient. The last thing on your mind is dealing with the logistics and complications that could possibly arise from filing a medical malpractice claim. Hiring a skilled attorney that regularly handles cases like yours can help you cope and focus on what you need to do to get on with your life.

Bringing a medical malpractice lawsuit with the help of hired legal representation isn't supposed to make your life more difficult, it's ensuring that you receive the monetary compensation you deserve. After enduring an injury that could have prevented, it's only necessary that you are granted a monetary award for the unfortunate damages and losses that you've withstood. That's why choosing legal counsel that fits your needs is pivotal in solidifying a satisfactory outcome. Asking the right questions during a consultation can make all the difference.

It's important to note that the attorney is working for you and not the other way around. It's always in your best interest to interview more than one firm to make sure you choose the right one for you. Ensuring that the lawyer who represents you has extensive experience with malpractice cases, can communicate efficiently, and empathizes with your circumstance are just some of the affirmations a victim of medical malpractice must assess.

Most importantly, you should rule out the services of attorneys you simply can not afford. Medical malpractice cases must be paid for in two ways: a contingency fee or an hourly wage. Under a contingency fee, the attorney will be paid a percentage of the monetary wages awarded to the plaintiff by the court. Alternatively, an hourly wage agreement requires that the attorney be paid for every hour they work on your case. Make sure you ask an attorney about their method of payment before making any final decisions.

Some notable medical malpractice law decisions from Oklahoma

Please note that the prior results of this medical malpractice case does not guarantee the the same results of a similar case.

Jarvis vs. Mercy Hospital (ongoing case)

A 23-year- old plaintiff named Whitney Jarvis, filed a lawsuit against the Mercy Hospital upon discovering that a medical sponge was left inside of her knee.

Jarvis was on the Oklahoma Christian College track and field team. She had broken her ACL during a race and was rushed to Mercy Hospital for an emergency medical procedure. Three days after her seemingly successful operation, she began to feel intense pain.

After being evaluated by another doctor and several x-rays later, Jarvis and her parents were informed that the foreign object had been left in her knee. Immediately after receiving this information, they decided to take legal action.

Mercy Hospital released a statement specifying that they don't respond to pre-litigation allegation claims, and that they are now conducting a thorough investigation. The hospital has one month to respond to this petition.

The Jarvis family is seeking damages, but aren't sure about what the amount will be.

Footnotes

[1] Okla. Stat. Ann. Tit. § 12-95(A)(3)

[2] Okla. Stat. Ann. Tit. 23, §14

[3] Okla. Stat. Ann. Tit. 23, § 9.1

[4] Okla. Stat. Ann. Tit. § 12-19.1

[5] Okla. Stat. Ann. Tit. § 12-2012

[6] Okla. Stat. Ann. Tit. § 38-18

[7] Okla. Stat. Ann. Tit. § 22-1078

Let Us Help

If someone you are close to has been seriously injured or worse, you are naturally devastated not only by what has happened, but by the effect that the injury or loss has had on you and your family. At a time when you're vulnerable, traumatized and emotionally exhausted, you need a team that will support you through the often complex process that lies ahead.

Menu