A meritorious idea whose time has come in Pennsylvania.

Posted By Cliff Tuttle | September 12, 2009

Posted by Cliff Tuttle (c) 2009

SUMMARY: The Pennsylvania requirement that a certificate of merit be filed in a professional malpractice case deters and frustrates frivolous claims.

In an effort to address the medical malpractice component of the high cost of medical insurance, The Wall Street Journal Law Blog reviewed provisions adopted in some states of referring medical malpractice claims to medical review boards or requiring “certificates of merit” to be filed early in the case.

Pennsylvania is one of those states that requires a certificate of merit, not just for medical malpractice, but in every case where professional liability is involved. This includes a wide range of licensed professionals, such as accountants, architects, dentists, lawyers, engineers, surveyors, therapists and veterinarians. It also applies to professional corporations, partnerships and other business entities formed by professionals to conduct their practice. And it applies to claims involving lack of informed consent.

Pennsylvania Rule of Civil Procedure 1042.3 (a) states:

“In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for plaintiff, or the plaintiff, if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either

(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 about 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 prosecution of the claim.”

A separate certificate must be filed for each professional named as a defendant and each claim raised. A defendant asserting a counterclaim must also file a certificate.

Thus, when Dr. Drill, the painless dentist, sues Hardluck, his patient, for fees and Hardluck countersues, stating that Dr. Drill shouldn’t be paid because he did terrible work, Hardluck must file a certificate of merit or suffer the dismissal of the counterclaim sixty one days later.

People who call into talk shows complaining about frivolous medical malpractice suits driving up the cost of care almost never know about Rule 1042.3. This Rule makes filing a malpractice suit just to obtain a nuisance payment pretty difficult and very dangerous to the complaining party. If the attorney filing the claim loses the case and is unable to produce an expert report supporting the certificate, a judge can award sanctions against the lawyer.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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