Changes in Pennsylvania Rules in Cases Requiring a Certificate of Merit
In January of 2003, the Pennsylvania Legislature, in an effort to curb frivolous lawsuits against nursing homes and personal care homes licensed by the Department of Public Welfare (as well as other professionals) , enacted, in conjunction with other state entities, Pennsylvania Rules of Civil Procedure 1042 et seq. These rules, as briefly explained below, require a plaintiff in a professional liability matter to adhere to certain guidelines not otherwise required in matters involving “nonprofessional” defendants. These rules have a direct bearing on the assisted living industry in the Commonwealth of Pennsylvania.
Pennsylvania Rule of Civil Procedure 1042.1(a) governs “a civil action in which a professional liability claim is asserted against a licensed professional.” A “licensed professional” includes in its definition a “healthcare provider as defined by section 503 of the Medical Care Availability and Reduction of Error (Mcare) Act, 40 P.S. section 1303.503.” Personal care homes licensed by the Pennsylvania Department of Public Welfare are specifically mentioned in this section.
Why is this significant? If a plaintiff identifies her Complaint as one of professional liability against the defendant(s), the plaintiff is required to file a Certificate of Merit (“COM”). A Certificate of Merit is required in “any action based upon an allegation that a licensed professional deviated from an acceptable professional standard.” Pa.R.C.P. 1042.3(a). It is required to verify one of three things:
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing abut the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for the prosecution of this claim.
Pa.R.C.P. 1042.3(a)(1)-(3).
Basically, the COM is a procedural hoop that a plaintiff must jump through before engaging in the substance of litigation against a “health care provider.” As one can see, the COM requirement essentially makes a plaintiff disclose from the onset of an action, generally, that the matter involves a deviation from an acceptable professional standard of care, which is verified by an appropriate licensed professional retained by the plaintiff. In the alternative, plaintiff’s counsel may assert that her client does not require an expert to proceed with a claim.
However, the identity of the expert providing the COM for the plaintiff is not discoverable during litigation. It is not a requirement that the expert utilized in support of the COM be the same expert testifying on behalf of the plaintiff at the time of trial. See Pa.R.C.P. 1042.1(a)(1) and accompanying note.
These rules are designed to discourage frivolous claims against licensed professionals in a number of ways. First, if the Complaint is not properly identified by the plaintiff as one of professional liability, the defendant may alert the court of this discrepancy and have the matter properly identified and the issues framed accordingly, thereby narrowing the scope of the case. Second, if a defendant believes that a professional liability claim has been asserted through the language of the Complaint, and plaintiff fails to file the COM, the defendant can take steps to dismiss the case entirely. Accordingly, immediate litigation planning with defense counsel is important.
This discussion is a very brief glimpse into a new Pennsylvania civil procedure rule governing professional liability claims. While these rules will not eliminate frivolous claims, they do provide the defense bar with another tool to combat these types of cases.
(Stuart T. O’Neal, Esquire is an attorney
with McCumber, Inclan, Daniels, Buntz, Richardson, Hartig & Puig, P.A.,
with offices out of Tampa, Florida
and King of Prussia, Pennsylvania.
The Firm specializes in the defense of long term
care facilities, including assisted living facilities
and nursing homes. McCumber Daniels also handles matters
involving premises liability and the defense of real
estate brokers. Mr. O’Neal resides in McCumber Daniels’s King of Prussia office, and may be
reached at (610) 275-5456, extension 101, or via
e-mail at soneal
@mccumberinclan.com).
Footnotes
1 - Other licensed professionals include attorneys, veterinarians, psychologists, physical therapists, pharmacists, optometrists, nurses, engineers, land surveyors, dentists, chiropractors, architects and accountants.
