SUPREME COURT OF PENNSYLVANIA ISSUES
NEW RULES GOVERNING VENUE
AND INITIATION OF ACTIONS FOR
MEDICAL AND PROFESSIONAL NEGLIGENCE
Written by: James J. Dodd-o, Esquire and Hugh P. O’Neill, III, Esquire
On January 27, 2003, the Pennsylvania Civil Procedural Rules Committee of the Supreme Court of Pennsylvania issued orders effecting the Pennsylvania Rules of Civil Procedure as they relate to certain aspects of claims for medical and professional liability. The Orders, providing for immediate promulgation of the Rules, amended Pa.R.C.P. 1006, 2130, 2156 and 2179 (addressing venue), and adopted new Rules 1042.1 through 1042.8. These new provisions require the Plaintiff asserting a claim for professional negligence to submit a "Certificate of Merit" indicating that a licensed professional has reviewed the matter and determined there exists a reasonable probability that the treatment, practice or work complained of "fell outside acceptable professional standards, and...was a cause in bringing about the harm... ." 1042.2(1). Pa.R.C.P. 229, 1026 and 4007.2 were also amended to conform with the changes brought about by the new Rules. The salient changes are discussed in more detail below.
VENUE
Pa.R.C.P. 1006(a.1) requires all cases wherein a claim for medical professional liability is alleged to be filed only in the county in which the cause of action arose. This includes actions to enforce joint and several liability where some of the Defendants are health care providers while other Co-Defendants are not. In such a situation, the claim may be brought only in a county in which venue may be laid against at least one of the health care Defendants. Pa.R.C.P. 1006(c). The amendments also address cases where multiple claims are asserted against a single entity, and at least one of the claims is for medical professional liability. In such a situation, venue is limited to the county in which the cause of action for medical professional liability arose. Pa.R.C.P. 1006(f)2.
Pa.R.C.P. 2130 addresses venue in claims brought against partnerships. Where a partnership is a listed party, Pa.R.C.P. 1006(a.1)[as amended above] governs venue. Pa.R.C.P. 2156 (addressing unincorporated associations as Defendants) has been amended to indicate Rule 1006(a.1) governs venue in actions for medical professional liability. The amended rules made a similar change in Pa.R.C.P. 2179, addressing venue for claims involving corporations and similar entities as parties. Therein, the Court amended the venue provision to note that Pa.R.C.P. 1006(a.1) will govern venue in actions for medical professional liability.
Thus, the Rules make clear that claims asserted against a medical professional, including claims with multiple Defendants wherein some are health care providers while some are not, may only be brought in a county in which venue may be laid against at least one of the health care providers. As the Explanatory Comment notes, "[t]herefore, an action to enforce joint and several liability against health care Provider A that provided treatment in County 1 and against a product manufacturer that does business in County 2 may be brought only in County 1."
The amended Rule 1006 is designed to prevent a Plaintiff from frustrating the venue provisions by asserting both a medical and non-medical negligence claim against one or more Defendants and by doing so, attempting to bring the action in a county other than the county in which the cause of action for medical professional liability arose. Under any such scenario, venue is limited to the county in which the cause of action for medical professional liability arose.
CERTIFICATE OF MERIT
The new Rules of Civil Procedure 1042.1 through 1042.8 set forth additional requirements for asserting a claim against a licensed professional. A "licensed professional" is defined by the statute as including: a health care provider as defined by §503 of The Medical Care Availability and Reduction of Error (MCare) Act, 40 P.S. §1303.503; a chiropractor; a dentist; a nurse; an optometrist; a pharmacist; a physical therapist; and a psychologist." It would also include any professional described above who is licensed by another state. Pa.R.C.P. 1042.1.(b)(3).
Pursuant to Pa.R.C.P. 1042.2, the Plaintiff must identify each Defendant against whom a professional liability claim is alleged. The Rule provides the required method by which a Plaintiff is to identify said Defendant(s). Where a Plaintiff fails to conform with Pa.R.C.P. 1042.2, the Defendant may raise said failure by Preliminary Objection.
The most substantive change in practice resulting from the New Rules of Procedure begins with Pa.R.C.P. 1042.3, which requires the Plaintiff to file a Certificate of Merit supporting the professional liability claim against a licensed professional who allegedly deviated from an acceptable professional standard. Plaintiff is now required to file a Certificate of Merit, signed by an attorney or party, with the Complaint or sixty days thereafter.
The Certificate of Merit must set forth that an appropriate licensed professional has acknowledged in writing that a reasonable probability exists that the Defendant professional violated the accepted professional standards causing harm. Alternatively, the Certificate of Merit may assert vicarious liability based upon allegations that other licensed professionals, for whom the Defendant is responsible, violated the acceptable professional standard. As a final alternative, the party or attorney may certify that the case is the type of action where expert testimony is unnecessary for prosecution of the case. However, where such a statement is made, the Plaintiff will be bound by the certification and subsequently, "the trial court shall preclude the Plaintiff from presenting expert testimony on the question of standard of care and causation in the absence of exceptional circumstances." Pa.R.C.P. 1042.3(a)(3)(note).
The licensed professional supporting the Certificate of Merit must possess sufficient education, training, knowledge, and experience to provide credible competent testimony against the Defendant. In other words, the expert would be qualified such that a Trial Court would find him sufficiently credentialed to testify at Trial. However, the Rule does not require that the licensed professional who supplies the Certificate of Merit be the same person who will actually testify at Trial. The Rule does suggest, but does not require, that the expert providing the Certificate of Merit Statement should meet the qualifications set forth in §512 of The MCare Act.
A separate Certificate of Merit must be filed as to each licensed professional against whom a claim is asserted. Pa.R.C.P. 1042.3.(b).
The Rules allow the Court, "upon good cause shown", to extend the time for filing a Certificate of Merit for a period not to exceed sixty (60) days. The Rules further provide that no restrictions are placed on the number of Orders for extension of time a Court may enter for the filing of a Certificate of Merit. The only restriction is that any Orders must be "entered pursuant to a new Motion, timely filed, and based on cause shown as of the date of the filing of the new Motion." Pa.R.C.P. 1042.3.(d)(Note). Any subsequent filing of a Motion to Extend the Time for Filing a Certificate of Merit must be filed "on or before the filing date that the Plaintiff seeks to extend." Id.
The Rules Committee Note to Pa.R.C.P. 1042.3(d) provides that the court in ruling upon a motion to extend time can consider a number of different factors. The Note specifically identifies that the court shall give appropriate consideration to practical difficulty in securing an expert review. Moreover, the court can consider the representation made by Plaintiff’s counsel if counsel was first consulted by Plaintiff shortly before the expiration of the statute of limitations. The Rules Committee also identifies unavailability of medical records necessary to obtain an expert review where diligent efforts have been made by Plaintiff’s counsel to obtain the records. Pa.R.C.P. 1042.3(d) (Note).
The New Rules have also set forth limitations on Pre-Complaint Discovery, limiting discovery to information needed by the licensed professional to make a determination as to whether a Defendant deviated from accepted professional standards. New Rule 1042.5 states a Plaintiff may not seek pre-Complaint discovery without leave of court except for document requests and things or entry upon property for inspection.
The Note to the Rule allows for a Motion seeking Leave of Court to allow discovery required for a licensed professional to make a determination as to whether a Defendant deviated from accepted professional standards. However, the Defendant is also permitted to file a Protective Order to limit or preclude any requests for documents prior to the filing of a Certificate of Merit. Consequently, while it is likely that a Court would permit Plaintiff to obtain medical records from the health care providers, a request to limit any additional discovery (absent unusual circumstances) should meet with success.
The timing of the Answer to a Complaint has also been amended. Under Pa.R.C.P. 1042.4, a Defendant must file a responsive pleading "within the time required by Rule 1026 or within twenty (20) days after service of the Certificate of Merit on that Defendant, whichever is later." In addition, where the Plaintiff has not filed the Certificate of Merit in an appropriate or timely manner, the Prothonotary, "on Praecipe of the Defendant, shall enter a judgment of non pros against the Plaintiff for failure to file a Certificate of Merit within the required time provided that there is no pending timely filed Motion seeking to extend the time to file the Certificate." Pa.R.C.P. 1042.6(a). No ten day "Notice of Praecipe for Entry of Judgment of Non Pros" is required in this instance.
The New Rules also provide for sanctions where a Certificate of Merit has not been properly obtained. Where a Plaintiff files a Certificate of Merit as to a particular Defendant who is either dismissed voluntarily or through verdict or Order of Court, the Plaintiff, within thirty (30) days of a written request by the Defendant "shall provide him or her with the written statement obtained from the licensed professional upon which the Certificate of Merit as to that Defendant was based." Pa.R.C.P. 1042.7.(a). In cases where Plaintiff’s claims against other licensed professionals are still pending, "the written statement shall be p roduced within thirty (30) days of resolution of all claims against the other licensed professionals." Id.
Where an attorney improperly certifies that an appropriate licensed professional supplied a written statement indicating that the care fell outside of acceptable professional standards, the Court may impose appropriate sanctions including payment of penalties into the Court and attorney’s fees. Indeed, the Court notes that the sanctions may include those "provided for in Rule 1023.4," which include payment of penalty into Court, and payment of some or all reasonable attorney’s fees and other expenses incurred as a result of the violation.