Supreme Court Of Pennsylvania Now Considering “Equitable Exceptions” To The Certificate Of Merit Requirement

October 2005

BY: Kevin C. Cottone and Gregory F. Brown

One of the most significant changes implemented in an attempt to alleviate the medical malpractice crisis is the requirement of certificates of merit in professional liability matters. Rule 1042.3 of the Pennsylvania Rules of Civil Procedure requires a certificate of merit to be filed within 60 days of the filing of the original complaint. The certificate must state that an appropriate licensed professional has supplied a written statement that there exists reasonable probability that the care, skill or knowledge exercised by the defendant fell outside the acceptable professional standard and that such conduct was a cause in bringing about the harm. The Rules permit a plaintiff to seek extension not to exceed 60 days if the request for an extension is timely filed, i.e., within the 60-day period, and good cause is shown. However, if the plaintiff fails to file a certificate of merit within 60 days of the filing of the original complaint and does not seek an extension, the defendant to the relevant claim may immediately enter a judgment of non pros.

Since promulgation and passage of the certificate of merit rule on January 27, 2003, there has been significant litigation regarding its applicability and enforcement. In fact, in the past year alone, issues involving certificates of merit have been before the Superior Court of Pennsylvania on at least twelve occasions. See Almes v. Burket, ___ A.2d ___ 2005 WL1869863 (Pa. Super. 2005); Krauss v. Claar, 879 A.2d 302 (Pa. Super. 2005); O’Hara v. Randall, 879 A.2d 240 (Pa. Super. 2005); Yee  v. Roberts, 878 A.2d 906 (Pa. Super. 2005); Harris v. Neuburger, 877 A.2d 1275 (Pa. Super. 2005); Kotloff v. Irfan, ___ A.2d ___ (Pa. Super. 2005) (non-precedential); Warner v. Univ. of Pa. Hlth. Sys., 874 A.2d 644 (Pa. Super. 2005); Caro v. Glah, 867 A.2d 531 (Pa. Super. 2005); Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004); Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004); Parkway Corp. v. Edelstein, 861 A.2d 264 (Pa. Super. 2004); Olshan v. Tenet Health, 849 A.2d 1214 (Pa. Super. 2004).  The Commonwealth Court has also considered the issue. See Dobos v. Pennsbury Manor, 878 A.2d 182 (2005). Generally, the certificate of merit rule has been strictly enforced by the Superior Court of Pennsylvania. In fact, of all the cases in which the Superior Court has considered the rigidity of the requirement, the court has opened or affirmed the opening of a judgment of non pros on the basis of the plaintiff’s substantial compliance with the 60-day rule only twice.

The rigor with which the certificate of merit requirement should be enforced is now being considered by the Supreme Court of Pennsylvania in Womer v. Hilliker, M.D., 869 A.2d 482 (Pa. 2005). In Womer, the Supreme Court of Pennsylvania is presented with the issue of whether it will consider equitable exceptions in determining whether to open or strike a non pros entered as a result of the plaintiff’s failure to file a certificate of merit.

In Womer, plaintiff failed to file a certificate of merit within 60 days after filing the complaint. Plaintiff also failed to seek an extension of time within the 60-day period.  Instead, eleven months prior to the entry of non pros, plaintiff provided the defendant’s insurance company’s adjuster with an expert report at the adjuster’s request.  The expert report specified in complete detail the exact claims listed in the Complaint. Further, before the entry of the judgment of non pros, plaintiff responded to the defendant’s discovery requests by providing an additional copy of the report, as well as its’ author’s curriculum vitae. Given these submissions, plaintiff argued that he had “substantially complied” with the requirements of Rule 1042.3, and requested the court to lift the judgment of non pros. The trial court refused, and plaintiff appealed to the Superior Court.

On appeal, plaintiff argued that the trial court had erred in its literal and rigid application of Rule 1042.3. Plaintiff reiterated his argument that his multiple disclosures of expert materials constituted substantial compliance with the Rule. The Superior Court agreed, and in a Memorandum Opinion dated August 11, 2004, determined that the plaintiff/appellant had demonstrated a meritorious claim, and vacated the judgment of non pros.¹ The defendant appealed to the Supreme Court of Pennsylvania, where the case is currently pending.

Traditionally, if a defendant obtained a judgment of non pros, a plaintiff could petition the court to strike or open the non pros under Rule 3051 by demonstrating that: (1) the petition to strike or open the non pros was timely filed; (2) there was a reasonable explanation or a legitimate excuse for the inactivity or delay; and (3) it was a meritorious cause of action. In Womer, the Supreme Court will decide whether to permit a professional liability plaintiff to invoke Rules 3051 and 126 to obtain relief from a judgment of non pros entered pursuant to the new certificate of merit rules.

In other words, the Supreme Court of Pennsylvania, in Womer, will decide whether to endorse the general trend of strict enforcement, prevalent in the Superior Court’s opinions, or to permit equitable exceptions to the rule. Strict enforcement of the rule is obviously more advantageous to professional liability defendants. If the Court decides to permit equitable exceptions to the rule, trial courts across the Commonwealth will be permitted to decide whether to open a judgment of non pros under the specific circumstances of each case. Of course, plaintiffs will cite many reasons for their failure to comply with the Rule, including attorney mistake, clerical error, significant compliance, and even ignorance. Relaxed enforcement will leave a professional liability defendant uncertain as to whether a successfully-entered judgment of non pros will stand. Moreover, the procedural disputes that will accompany the application of an equitable exception will likely increase the cost of the defense.

It should be noted that from a substantive standpoint, perhaps the most important question presented in Womer is the underlying issue of whether the expert who provided the written statement for the certificate of merit is subject to the same licensure and credentials requirements as the expert who would testify against the licensed professional in court.  See 40 P.S. §1303.512 (generally requiring the expert to practice in the same subspecialty and have the same or similar board certification).

Joining the fray before the Supreme Court in Womer are the Pennsylvania Trial Lawyers Association and Pennsylvania Medical Society, as amici curiae. The issues of Womer have been fully briefed, and it is likely that an opinion from the Court will be forthcoming within the next six to eight months.

¹ Of note, in the Superior Court opinion in Womer, the court explicitly stated that it was not deciding the issue of whether the expert report, itself, satisfied the requirements of 1042.3. Of note, the author of the expert report was an optometrist, whereas the defendant in the case was an ophthalmologist. The court directed the trial court to address the issue on remand and presumably decide whether, in a case against an ophthalmologist, an optometrist, was an “appropriately” licensed individual.

About the Authors: Kevin C. Cottone (215-864-7108, cottonek@whiteandwilliams.com) is a partner in the Litigation Department at White and Williams LLP. He focuses his practice on medical malpractice and insurance fraud litigation. Gregory F. Brown (215-864-7150, browng@whiteandwilliams.com) is an associate. Both are members of the firm’s Healthcare Law Group.