Malpractice Case Highlights Risks Of Filing Pro Se: A Pennsylvania medical malpractice plaintiff filed a pro se medical malpractice case in the Court of Common Pleas of Lycoming, Pennsylvania in which he failed to timely file a certificate of merit (the pro se medical malpractice complaint alleged that the Defendant “caused loss of sight due to neglect in or about June 201 9” but did not provide further facts).
Rule 1 042.3 requires a plaintiff to file a certificate of merit “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard” with the complaint or within sixty days thereafter. When a plaintiff alleges that a licensed professional is directly liable to plaintiff for harm caused by a deviation from an acceptable professional standard, the certificate of merit must assert that: “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 . . . . “
Rule 1 042.3(e) specifies that “[i]f a certificate of merit is not signed by an attorney, the party signing the certificate of merit shall. . . attach to the certificate of merit the written statement from an appropriate licensed professional. . . .”
Rule 1 042.7 allows a defendant to obtain a judgment of non pros for failure to comply with Rule 1042.3. To obtain such a judgment, a defendant must first file a written notice of the intent to seek a judgment of non pros for the plaintiff’s failure to file a certificate of merit. A defendant must file the notice no sooner than the thirty first day after the filing of the complaint, and must provide at least thirty days for the plaintiff to either file a certificate of merit or seek the court’s determination that a certificate of merit is not necessary.”
The Court stated in the case before it: “Plaintiff has not established a “reasonable explanation or legitimate excuse” for his failure to comply with Rule 1 042.3. Despite having an ostensible written statement in hand as of August 9, 2021 , Plaintiff did not file a certificate of merit or otherwise provide a certificate of merit to Defendant either at the time of the Complaint or within sixty days of its filing. Indeed. he did not file a certificate of merit after the entry of the judgment of non pros, along with the instant Motion, or at any time prior to the June 29, 2022 hearing in this matter, which was also the first time Plaintiff indicated that he had obtained a written statement … Here, although Plaintiff appears to have attempted to file documents on a handful of occasions, he only succeeded in doing so on two occasions: when he filed his Complaint on December 17, 2021 , and four months later when he filed the instant Motion on April 1 8, 2022. Most importantly, Plaintiff has never asserted that he attempted to file the one document crucial to this matter: a certificate of merit.”
The Court held: “Here, Plaintiff did not file a defective certificate of merit, or file his written statement in lieu of a certificate of merit because he believed that was sufficient. Rather, he took no action to comply with Rule 1 042.3 at all. If Plaintiff did not take action because he misunderstood his obligations under the Rules of Civil Procedure, construing his misunderstanding as a satisfactory explanation or excuse would be to impermissibly grant him a “special benefit” due to his pro se status. Ultimately, Plaintiff has not demonstrated a “reasonable explanation or legitimate excuse” for his failure to file a certificate of merit or take any actions of record to address that failure when it became an issue in the case.”
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