§76-95. Prerequisite of prima facie showing in silica claims -
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Medical report - Evidence requirements.
A. No person shall have a silica claim placed on any active trial roster in this state, or brought to trial in this state, or conduct discovery in a silica claim in this state, in the absence of a prima facie showing of impairment as shown by service on each defendant of a report by a physician who is board-certified in pulmonary medicine, internal medicine, oncology, pathology, or occupational medicine at the time of issuing the relevant medical report.
B. In a case alleging silicosis, the medical report must be issued by a physician who is board-certified in pulmonary medicine, internal medicine, occupational medicine, or pathology that:
1. The exposed person has been diagnosed with a silica-related condition; and
2. Confirms that a physician actually treating or who treated the exposed person, or who has or who had a doctor-patient relationship with the exposed person or a medical professional employed by and under the direct supervision and control of such physician:
a. performed a physical examination of the exposed
person, or if the exposed person is deceased, reviewed
available records relating to the exposed person's
medical condition,
b. took a detailed occupational and exposure history from
the exposed person or, if the exposed person is
deceased, from a person knowledgeable about the
alleged exposure or exposures that form the basis of
the action, and
c. took a detailed medical and smoking history that
includes a thorough review of the exposed person's
significant past and present medical problems and the
most probable cause of any such problem that is
relevant to the exposed person's impairment or
disease.
C. The medical report must set out the details of the exposed person's occupational, exposure, medical, and smoking history, and set forth that there has been a sufficient latency period for the applicable type of silicosis.
D. The medical report must confirm, on the basis of medical examination, chest x-ray and pulmonary function testing, that the exposed person has permanent respiratory impairment:
1. Rated at least Class 2 pursuant to the AMA Guides to the Evaluation of Permanent Impairment; and
2. Accompanied by:
a. a chest x-ray that is an ILO quality 1 film, except
that in the case of a deceased exposed individual
where no pathology is available, the film can be ILO
quality 2, showing bilateral nodular opacities (p, q,
or r) occurring primarily in the upper lung fields,
graded 1/1 or higher under the ILO system of
classification, or
b. a chest x-ray that is an ILO quality 1 film, except
that in the case of a deceased exposed individual
where no pathology is available, the film can be ILO
quality 2, showing large opacities (A, B, or C) in
addition to the small opacities referred to in the
preceding section, or
c. a chest x-ray that is an ILO quality 1 film showing
acute silicosis as described in Occupational Lung
Diseases, Third Edition, as amended from time to time,
or
d. pathological demonstration of classic silicotic
nodules exceeding one
(1)centimeter in diameter as
published in 112 Archive of Pathology and Laboratory
Medicine 7 (July 1988), as amended from time to time,
or
e. pathological demonstration of acute silicosis.
E. For all other silica-related claims, other than silicosis, the medical report must:
1. Be issued by a physician who is board-certified in pulmonary medicine, internal medicine, occupational medicine, or pathology that:
a. the exposed person has been diagnosed with a silica-
related condition, and
b. confirms that a physician actually treating or who
treated the exposed person, or who has or who had a
doctor-patient relationship with the exposed person or
a medical professional employed by and under the
direct supervision and control of such physician:
(1)stating a diagnosis of silica-related lung cancer
based on a sufficient latency period which is not
less than fifteen
(15)years and a statement that
to a reasonable degree of medical certainty
exposure to silica was a proximate cause of the
exposed person's physical impairment, accompanied
by a conclusion that the exposed person's silica-
related lung cancer was not more probably the
result of causes other than exposure to silica
revealed by the exposed person's occupational,
exposure, medical, and smoking history, or
(2)stating a diagnosis of silicosis complicated by
documented tuberculosis, or
(3)stating a diagnosis of any other silica-related
disease, accompanied by a diagnosis of silicosis
as defined herein, based on a sufficient latency
period and a statement that to a reasonable
degree of medical certainty exposure to silica
was a proximate cause of the exposed person's
physical impairment, accompanied by a conclusion
that the exposed person's silica-related disease
was not more probably the result of causes other
than exposure to silica revealed by the exposed
person's occupational, exposure, medical, and
smoking history; and
2. Be accompanied by:
a. a chest x-ray that is an ILO quality 1 film, except
that in the case of a deceased exposed individual
where no pathology is available, the film can be ILO
quality 2, showing bilateral nodular opacities (p, q,
or r) occurring primarily in the upper lung fields,
graded 1/1 or higher under the ILO system of
classification,
b. chest x-ray that is an ILO quality 1 film, except that
in the case of a deceased exposed individual where no
pathology is available, the film can be ILO quality 2,
showing large opacities (A, B, or C) in addition to
the small opacities referred to in subparagraph a of
this paragraph,
c. chest x-ray that is an ILO quality 1 film showing
acute silicosis as described in Occupational Lung
Diseases, Third Edition, as amended from time to time,
d. pathological demonstration of classic silicotic
nodules exceeding one
(1)centimeter in diameter as
published in 112 Archive of Pathology and Laboratory
Medicine 7 (July 1988), as amended from time to time,
or
e. pathological demonstration of acute silicosis.
F. All evidence and reports used in presenting the prima facie showing required in this section, including pulmonary function testing and diffusing studies, if any:
1. Must comply with the technical recommendations for examinations, testing procedures, quality assurance, quality controls, and equipment in the AMA's Guidelines to the Evaluation of Permanent Impairment and the most current version of the Official Statements of the American Thoracic Society regarding lung function testing, including general considerations for lung function testing, standardization of spirometry, standardization of the measurement of lung volumes, standardization of the single breath determination of carbon monoxide uptake in the lung, and interpretive strategies of lung testing in effect at the time of the performance of any examination or test on the exposed person required by this act.
Testing performed in a hospital or other medical facility that is
fully licensed and accredited by all appropriate regulatory bodies in the state in which the facility is located, is presumed to meet the requirements of this subsection. This presumption may be rebutted by evidence demonstrating that the accreditation or licensing of the hospital or other medical facility has lapsed, or providing specific facts demonstrating that the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment have not been followed;
2. Must not be obtained through testing or examinations that violate any applicable law, regulation, licensing requirement, or medical code of practice;
3. Must not be obtained under the condition that the exposed person retains legal services in exchange for the examination, test, or screening;
4. Shall not result in any presumption at trial that the exposed person is impaired by an asbestos- or silica-related condition; and
5. Shall not be conclusive as to the liability of any defendant.
G. The conclusion that a prima facie showing has been made is not admissible at trial. Added by Laws 2013, 1st Ex.Sess., c. 21, § 7, emerg. eff. Sept. 10, 2013. NOTE: Text formerly resided under repealed Title 76, § 65, which was derived from Laws 2009, c. 228, § 59, which was held unconstitutional by the Oklahoma Supreme Court in the case of Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.2d 789 (Okla. 2013).