Wednesday, March 31, 2010

The Certificate of Merit - The first hurdle in medical malpractice actions

Attorneys in Pennsylvania that specialize in defending claims of medical malpractice often complain that it is too easy to file such lawsuits. In fact, these grumblings are heard throughout all professional liability actions. But this argument has not carried water since 2003 when Pennsylvania adopted rule of civil procedure 1042.3.

Rule 1042.3 mandates that a plaintiff in a Pennsylvania professional liability suit (medical malpractice being the most common) must file a Certificate of Merit within sixty days of the filing of the original complaint. The rule now requires that Plaintiff’s submit a Certificate stating 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 also must include an opinion from an appropriately licensed professional that the conduct in question was a cause in bringing about the Plaintiff’s harm.

Obtaining a certificate of merit is no small feat. The Plaintiff or their attorney must first find an appropriately licensed professional i.e. a person in the same or similar field of practice as the Defendant. This professional must be willing to offer an opinion against someone in their field of practice. This is something that many experts, understandably, will not do, no matter how severe the mistake. As a result, it is not unusual to look outside one’s city or even one’s state to find someone willing to provide a letter of probable cause. Then of course there is the cost of the letter of probable cause that is not cheap. All together, certifying that there is merit to your case is quite a task.

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.

The Certificate of Merit has no doubt limited the number of medical malpractice and professional liability actions filed in Pennsylvania since 2003. This is a critical concept for Plaintiffs to keep in mind as they consider whether to undertake a malpractice lawsuit. Because, despite what defense attorneys say, this rule has teeth.

For additional information attorneys Kevin C. Cottone and Gregory F. Brown of malpractice defense firm White and Williams LLP posted an in depth update on the Certificate of Merit here.
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