Certificate of Merit Statute: Constitutional or Unconstitutional?

Professional associations representing design professionals have, for a number of years, promoted legislation that requires plaintiffs to obtain an opinion from a professional consultant before instituting suit against a design professional.  These statutes are often referred to as “certificate of merit” laws.  In general, these laws require a plaintiff to obtain an opinion from a design professional confirming that its claim for professional negligence has merit.  Most statutory schemes require the plaintiff’s complaint to be dismissed if the requisite certificate is not obtained.

About a quarter of states have enacted certificate of merit statutes.[1]  These statutes differ greatly in scope, as they are dependent on a broad number of issues.  In addition, Hawaii and Kansas have enacted laws requiring plaintiffs to submit claims against professionals with an independent review board before filing the suit against a licensed professional.  Constitutional challenges to these statutes have produced mixed results.

The following states require a certificate of merit or submission to an independent review board for professional negligence claims:  Arizona, California, Colorado, Georgia, Hawaii, Kansas, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas.

Texas Certificate of Merit Statute

Under Texas law, plaintiffs bringing actions for damages arising out of a professional service by a licensed or registered professional are required to file a certificate of merit with the original petition with the court. [2]  The certificate of merit must be compiled by a third-party expert, which shows the negligence or other action, error or omission for each theory of recovery including “any error or omission in providing advice, judgment opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.”[3]  Further, the certificate of merit must state each theory of recovery for which damages may be recovered and the negligence or other action committed by the licensed or registered professional.[4]  Lastly, the third-party expert who creates the affidavit must be a licensed professional in the State of Texas.[5]

Texas implemented the certificate of merit requirement to deter frivolous claims.[6]  Accordingly, the certificate of merit requirement serves as a barrier to prevent plaintiffs from asserting nonmeritorious claims.  A plaintiff’s failure to attach the certificate to its original petition allows a defendant to move to dismiss the lawsuit with or without prejudice.[7]  Though this practice has been continually recognized in Texas, there remains the question of whether the certificate of merit statute creates an impermissible unconstitutional barrier upon a plaintiff’s ability to reach the courthouse steps.

Oklahoma Certificate of Merit Statute Unconstitutional

Prior to 2017, Oklahoma’s certificate of merit statute, similar to the Texas statute, required plaintiffs to file an affidavit of merit from an expert attesting to the claim with the petition. In particular, the statute required a plaintiff to consult and review the facts with a qualified expert; obtain a written opinion from the qualified expert that includes the determination of the expert based upon a review of the available evidence.[8]  However, if the plaintiff fails to attach an affidavit from a qualified expert, “the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling.” [9]

In 2017, the Oklahoma Supreme Court held the certificate of merit statute unconstitutional.[10]  The plaintiff in John v. Saint Francis Hospital filed a medical negligence claim against a doctor who performed surgery on him.[11]  The doctor moved to dismiss for failure to attach an affidavit of merit from a qualified expert who attested to the claim.[12]  This district court, and the court of appeals held the affidavit requirement was unconstitutional, which the Supreme Court affirmed.  The court reasoned the statute placed an impermissible barrier on a plaintiff’s fundamental right to court access thus violating Article II, section 6 of the Oklahoma Constitution.[13]

Conclusion

Accordingly, certificate of merit statutes vary by state, but the requirements remain the same.  While some states continue to enforce the statutes, others are reluctant to implement this requirement because of the hurdles it creates for plaintiffs to reach the courthouse steps.  This raises the question of whether or not certificate of merit statutes are unconstitutional, especially if the plaintiff is unable to afford the third-party expert required to create the certificate of merit.

[1] This memorandum does not discuss certificate of merit statutes related to healthcare/medical malpractice claims. All statutes are current as of November 19, 2019.

[2] Crosstex Energy Servs. L.P. v. Pro Plus Inc., 430 S.W.3d 384, 387 (Tex. 2014) (quoting Tex. Civ. Prac. & Rem. Code § 150.002(a)).

[3] Tex. Civ. Prac. & Rem. Code § 150.002.

[4] Id.

[5] Id.

[6] CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 461 S.W.3d 627, 630 (Tex. App.—Fort Worth 2015, pet. denied).

[7] TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 76 (Tex. App.—Dallas 2014, pet. denied).

[8] 12 Okl. St. Ann §19.1 (West 2019).

[9] Id.

[10] John v. Saint Francis Hospital, 405 P.3d 681, 691 (2017).

[11] Id. at 683.

[12] Id. at 684.

[13] Id. at 691.