Certificates of Merit in Pennsylvania

As election season rolls again inexorably toward us, hot button issues come to the fore.  For Pennsylvania litigation attorneys, few issues discussed by politicians hit home more than tort reform. Medical malpractice lawyers especially know that tort reform can have a direct, significant impact on people’s lives. Plaintiff’s lawyers bemoan tort reform as putting caps on an injured patient’s right to recover fully for his or her damages. Defense attorneys and insurance companies contend that reform is necessary to stop frivolous lawsuits and to limit what they see as outrageous jury awards. But did you know that the Pennsylvania Supreme Court enacted the first steps of tort reform as far back as 2003?

On January 27, 2003, the Pennsylvania Supreme Court enacted PA Rule of Civil Procedure 1042.1 et seq, which provides for a certificate of merit to be filed in civil actions in which professional liability claim is asserted by or on behalf of a patient or client of the licensed professional against the licensed professional. This Rule is not limited to claims against doctors, however, as it also applies to claims against any kind of licensed professional, including accountants, architects, chiropractors, dentists, engineers or land surveyors, nurses, optometrists, pharmacists, physical therapists, psychologists, veterinarians, and attorneys.

Rule 1042.3 provides that:

(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, or

(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

The concept behind this requirement was the start of tort reform — it was an attempt by the Pennsylvania Supreme Court to force plaintiff’s attorneys to certify that an appropriate licensed professional made an independent finding that the defendant professional’s actions somehow deviated from the standard of care to be expected from the professional.

In the event that a certificate of merit is not filed on time, a defendant can seek to dismiss the plaintiff’s complaint. Furthermore, under Rule 1042.8, a court can impose sanctions if an attorney did not properly certify that an appropriate licensed professional supplied the required statement.

The Pennsylvania courts have held plaintiffs to the strict letter of the law when judging whether plaintiffs are required to comply with the certificate of merit Rules. In a 2006 Pennsylvania Supreme Court case, Womer v. Hilliker, 908 A.2d 269 (Pa. 2006), the Court held that even though the plaintiff provided the defendant an expert report which contained the same information which would have been required by a certificate of merit, the plaintiff’s failure to actually provide a certificate of merit in compliance with the Rules, without excuse, was fatal to Mr. Womer’s case. It shows that the Court was serious about requiring litigants to comply with its Rules.

Requiring a certificate of merit was a reasonable first step towards tort reform, which requires plaintiffs to confront the potential weaknesses in their cases much earlier in the litigation process. How much more reform may be on the way is a question as yet unanswered, but we can be sure that politicians on both sides of the aisle will take up their respective banners and wave them proudly in the times to come.