Pennsylvania Medical Malpractice Lawyer’s Failure To Timely Cure Shortcomings In Certificate Of Merit Dooms Claim

The Superior Court of Pennsylvania held in its non-precedential Memorandum decision filed on February 10, 2022 in a Pennsylvania medical malpractice case where the plaintiff’s certificates of merit required by Pa.R.C.P. 1042.3 completely omitted the confirmatory language required by Rule 1042.3(a)(1) and contained only language under paragraph (a)(2) but repeated that paragraph two times: “Appellant made no attempt to conform with Rule 1042(a)(1) despite clear, advance notice of procedural defects. Before the trial court entered the judgments of non pros, Appellant completely disregarded Rule 1042(a)(1) and adamantly maintained that she had already taken the proper steps to satisfy the rule. Later, Appellant admitted that she had not followed the proper steps under Rule 1042(a)(1). As our Supreme Court has made clear, Rule 126 only applies when there is substantial compliance with the Rules of Civil Procedure. In this case, there was simply no compliance with Rule 1042(a)(1).”

Rule 1042.3 provides, in pertinent part:

(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the 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[.]

* * *
(b)(1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.

The Superior Court of Pennsylvania stated in the case it was deciding on appeal: “In this case, even if an alleged scrivener’s error was initially a legitimate excuse for the defects, Appellant did not reasonably explain her conduct in obstinately insisting that the certificates of merit were correct long after receiving notice of obvious deficiencies. Appellees highlighted the deficiencies in their four petitions for judgments non pros filed between November 27, 2019 and December 16, 2019. The trial court held oral argument on the issue on January 28, 2020, but Appellant still claimed there was no error. Accordingly, we reject Appellant’s suggestion that it was not until after the entry of non pros that the error was brought to Appellant’s attention. Rather, despite prior notice of the certificate of merit defects, it was only after the trial court entered judgments of non pros that Appellant finally acknowledged the mistakes in her petition to open filed on February 27, 2020, three months after the errors were first brought to Appellant’s attention … In this case, there was simply no compliance with Rule 1042(a)(1). Orders affirmed.”

Source Monger v. Encompass Health Rehabilitation Hospital of Reading, LLC, J-S35003-21.

If you or a loved one suffered harm due to the medical negligence in Pennsylvania or in another U.S. state, you should promptly find a Pennsylvania medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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This entry was posted on Saturday, April 2nd, 2022 at 5:26 am. Both comments and pings are currently closed.


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