Certificate of Merit Update — Is Change in the Future?

By Kevin C. Cottone and Gregory F. Brown

For decades, all it took for someone to start a malpractice suit against a licensed professional in Pennsylvania was a nominal filing fee and a plaintiff ’s lawyer with a gambler’s heart. It’s not so easy anymore. Legislation, court rules, and judicial decisions have combined to create a new requirement whereby a plaintiff must promptly provide a Certificate of Merit before proceeding in a professional liability suit against a health care provider, architect, accountant, attorney, or engineer. Although the new requirement has been rigidly applied by the courts thus far, it may lose some of its teeth when the Supreme Court of Pennsylvania decides the pending case of Womer v. Hilliker, 869 A.2d 482 (Pa. 2005).

Approximately two years ago, primarily in an attempt to alleviate the medical malpractice crisis, the Pennsylvania Supreme Court promulgated Pennsylvania Rule of Civil Procedure 1042.3. Rule 1042.3 requires a plaintiff in a professional liability suit to file a Certificate of Merit within sixty days of the original complaint. The Certificate must state that an appropriately licensed professional has supplied a written statement that there exists “a reasonable probability” that the care, skill or knowledge exercised by the defendant fell outside the acceptable professional standard. The Certificate must also opine that such conduct was a cause in bringing about the harm. Although the plaintiff must certify that the opinion is from a qualified expert, the plaintiff is not required to identify the expert or describe the basis of his or her opinion. The Rules permit a plaintiff to seek an extension, not to exceed 60 days, if the request for an extension is filed within the original 60- day period, and if good cause for an extension is shown. If the plaintiff fails to file either a timely Certificate of Merit or a timely request for an extension, the defendant may immediately obtain a judgment of non pros.

Since promulgation and passage of the Certificate of Merit rule, there has been significant litigation regarding its applicability and enforcement. In fact, issues involving Certificates of Merit have been before the Superior Court of Pennsylvania on at least fifteen occasions. See Varner v. Classic Communication Corp., 2006 Pa. Super. LEXIS2; Warren v. Folk, 886 A.2d 305 (Pa. Super. 2005); Almes v. Burket, 881 A.2d 861 (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); Feiner v. Temple East, Inc., d/b/a Northeastern Hospital, (Pa. Super. 2005) (nonprecedential), Kotloff v. Irfan (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). Throughout these decisions, the Certificate of Merit rule has been well enforced. In fact, of all the cases in which the Superior Court has considered the requirement, the Court has lifted a judgment of non pros only twice.

The rigor with which the Certificate of Merit requirement should be enforced is now being considered by the Pennsylvania Supreme Court in Womer v. Hilliker, 869 A.2d 482 (Pa. 2005). In Womer, the Court will consider when and whether a judgment of non pros, entered as a result of the plaintiff ’s failure to file a Certificate of Merit, should be lifted.

In Womer, the plaintiff failed to file a Certificate of Merit within 60 days and did not move for an extension within the time prescribed by the rule. Instead, eleven months prior to the entry of the non pros, the plaintiff provided
the defendant’s insurance company’s adjuster with an adverse expert report authored by an optometrist against the defendant ophthalmologist. The expert report specified in complete detail the exact claims listed in the Complaint. Further, the plaintiff responded to the defendant’s discovery requests by providing an additional copy of the report, as well as its’ author’s curriculum vitae. After the non pros was entered due to noncompliance with the Certificate of Merit rule, the Womer plaintiff moved to lift the non pros on the basis that he had “substantially
complied” with the requirements of Rule 1042.3. The trial court disagreed, and refused to lift the non pros. On appeal to the Superior Court, the Womer plaintiff argued that the trial court should not have strictly applied Rule
1042.3. He argued that his multiple disclosures of expert materials constituted substantial compliance with the Rule. The Superior Court agreed, and in a Memorandum Opinion determined that the plaintiff had demonstrated a
meritorious claim. Accordingly, the court vacated the judgment of non pros. The Superior Court sidestepped the issue of whether an optometrist was sufficiently qualified to opine against an ophthalmologist. The Pennsylvania Supreme Court accepted the defendant’s appeal, and the case is now pending in that court. Joining the fray before the Supreme Court in Womer are advocates on both sides. Both the Pennsylvania Trial Lawyers Association (for plaintiffs) and Pennsylvania Medical Society are weighing in as amici curiae.

The technical issue in Womer is whether two other Pennsylvania Rules of Civil Procedure (Rules 3051 and 126) apply to a judgment of non pros obtained pursuant to the Certificate of Merit rules. Rule 126 encourages a liberal interpretation of the rules and Rule 3051 allows a judgment of non pros to be lifted upon plaintiff ’s demonstration 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) the plaintiff ’s cause of action was meritorious.

In Womer, the Pennsylvania Supreme Court may decide to endorse the general trend of strict enforcement, prevalent in the Superior Court’s opinions thus far. On the other hand, the court could decide 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 judges would 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 of the Rule would erode confidence in the finality of judgments, leaving 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 costs of defense. Thus, Womer has broad implications for all professionals who are subject to the certificate of merit requirement.

From a substantive viewpoint, another important question presented in Womer is whether the expert witness who completes the Certificate of Merit is subject to the same licensure and credentials requirements as the expert who would testify against the defendant-professional in court. A statute (40 Pa. Stat §1303.512) requires a plaintiff ’s expert to practice in the same subspecialty and to possess the same or similar board certification as the defendant against whom the expert opines. If that standard were to apply with respect to Certificates of Merit, an optometrist might not be deemed qualified to author a valid criticism on which a Certificate of Merit depends.

The issues of Womer have been fully briefed, and it is likely that the Supreme Court will issue its opinion in the case in a matter of months.