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Roseann Lynn Brenner and Elizabeth Syer-Ashmore speak at FSA's 5th Annual Conference
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Certificates of Merit: Compelling Litigation?
by Michael C. Ksiazek and Roseann Lynn Brenner

Let's face it, certificates of merit are not exactly weighty legal issues that inspire litigators and remind them why they got into this line of work in the first place. If anything, such requirements are more often among the minutiae that we deal with robotically. But actually, certificates of merit have created a great deal of interesting legal issues in recent years and are likely to be the source of heady litigation in professional negligence cases in the future.

Created in 2003, the certificate of merit was one of a several tools states began employing largely in an effort to decrease frivolous medical malpractice suits and case filings in general. Such filings were, and still are, argued by many to be the cause of rising malpractice insurance premiums. The certificate of merit is intended to, in effect, serve as a screening mechanism so that malpractice defendants are not forced to litigate meritless cases. The rule itself is rather concise and straightforward. But as any good lawyer knows, such traits often lead to more questions than answers.

Courts have already been forced to find answers for a number of questions raised by Rule 1042.3. Aside from early concerns with constitutionality and access to the courts, which states had to deal with, among other things, we now know in this jurisdiction that lack of informed consent cases, though technically amounting to a battery at common-law, require certificates of merit. We know that claims of ordinary negligence, which raise issues that are within the common knowledge and experience of the fact-finder, though perhaps occurring in the course of a professional relationship, do not require certificates of merit.

We know that pro se litigants are not afforded any special leniency with respect to the certificate of merit requirement. We know, at least in the realm of legal malpractice, that only one certificate of merit is required for several defendants who acting together were responsible for the same negligent act or omission.

And, just recently, the Civil Procedure Rules Committee proposed an amendment to the certificate of merit requirement that would, among other things, require certificates of merit in actions commenced against entities responsible for licensed professionals. This amendment would fill a gap in the current version of Rule 1042.3 that has actually already been addressed by the courts.

The change would affirm what the courts of the Commonwealth have already decided: that certificates of merit are necessary not only for actions brought against licensed professionals, but those brought against entities who are responsible for licensed professionals as well. (This does not even touch the subject of Rule 1042.3's timing requirement, which has produced its own multitude of issues and disputes). The questions that haven't been answered, however, more often form the tête-à-tête at cocktail receptions among - and sometimes even between - the plaintiff's and defense bar.

One such question concerns relief from a certificate of merit that does not match the allegations in the complaint. No doubt more than one defense attorney has had to grapple with this quandary: what to do when the certificate of merit and the complaint are inconsistent? An example may be illustrative: A plaintiff files a medical malpractice suit against defendant hospital alleging only vicarious liability in the Complaint. The accompanying certificate of merit, however, references not only vicarious liability, but corporate negligence by defendant as well - i.e., subsections (1) and (2) of Rule 1042.3(a).

Courts have allowed plaintiffs to amend a pleading on the eve of trial, long after the expiration of the applicable statute of limitations, to allege an entirely new factual theory of liability on the basis that the new theory is merely an amplification of a general allegation contained in the complaint. Connor v. Allegheny General Hospital is the seminal case on this issue. That decision laid the groundwork for striking general allegations in pleadings or requiring the pleader to provide more specificity. Preliminary objections in the nature of motions to strike vague or broad allegations are commonplace.

The precedent established by Connor and its progeny presents the unsettling (to professional defendants and their counsel anyway) proposition that a court might allow a plaintiff to amend his or her complaint at some future time to add a new cause of action without regard to the expiration of the applicable statute of limitations on the basis that it is simply an amplification of the general allegation contained in the certificate of merit.

In the aforementioned example, it would be like advancing a claim for corporate negligence against the hospital for the first time at trial. Would courts permit this on the ground that the defendant was on notice of this claim by way of the certificate of merit that clearly references direct negligence? Maybe not, if the complaint was devoid of any factual allegations to support this claim. But, as the Court in Connor stated the defendant/appellee "could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants' complaint... . In this case, however, appellee apparently understood this allegation of appellants' complaint well enough to simply deny it in its answer. Thus appellee cannot now complain that it was prejudiced by the late amplification of this allegation of appellants' complaint."

Translation: Protecting clients from a Connor situation may require defense attorneys to be proactive. And, while asserting both direct and vicarious liability in the certificate of merit may be little more than a conscientious plaintiff's attorney covering all his or her bases, most conscientious defense attorneys are unlikely to sit back and take that chance.

But what recourse does a professional defendant have when a plaintiff files a certificate of merit certifying that there is a reasonable probability that professional negligence has occurred, but then fails to plead sufficient facts in the complaint to support such a claim? There are preliminary objections to deal with a complaint that fails to comply with court rules. But the Rules of Civil Procedure do not contain a similar provision relative to certificates of merit - yet.

Technically, a certificate of merit is not itself a pleading and therefore not attackable by preliminary objection. That said, one approach for dealing with this situation might be to file a preliminary objection in the nature of a demurrer seeking dismissal of the claim to which the unsupported portion of the certificate pertains, and then move for what is arguably an implicit need to eliminate the portion of the certificate that pertains to the now defunct theory of liability. This could be difficult, particularly when it involves demurring to a claim that is not mentioned in the complaint.

Another approach might be to treat the contents of a certificate of merit as one would an allegation in the complaint and move to strike it as a vague or overbroad allegation that without further factual support elsewhere in a pleading, fails to give notice of the claim and its grounds. This could also be problematic as it still involves asserting a preliminary objection to a non-pleading (although certificates of merit can be, and often are, attached to pleadings). Admittedly, these tactics are not optimal. They require some creative lawyering, and the response of the courts is unknown. This begs the wider question: what is the appropriate vehicle for putting certificate of merit issues before the court?

Perhaps an amendment to the preliminary objections rule is needed. The Supreme Court could add an additional subsection permitting direct objection to a plaintiff's certificate of merit. Or, perhaps an entirely new procedural mechanism is needed exclusively for dealing with certificate of merit challenges. A device similar to preliminary objections, but tailored specifically to certificates of merit and incorporated into Rule 1042.3, would eliminate any procedural confusion. The point is, whether fashioned by the courts or crafted by the Rules Committee, litigants need a way to resolve this discrepancy and they need it soon. If the recently proposed amendment to Rule 1042.3 is any indication, the courts may have to take the lead in permitting preliminary objections to certificates of merit or some other similar approach, to be followed by subsequent amendment to the Rule by the Supreme Court adopting that precedent.

By most accounts, the certificate of merit has served it purpose. Medical malpractice case filings are down nearly 40% state-wide since 2003, and in Philadelphia County filings have decreased by more than 50%. And, most commentators consider the certificate of merit to be at least as effective, if not more so, than the alternatives employed in other jurisdictions (screening tribunals, verdict caps, etc.). Most likely, the certificate of merit is here to stay. Therefore, litigants will continue to uncover new issues and the courts and the Rules Committee will have to continue to face them. That means the certificate of merit - still in its infancy, relatively speaking - is likely to make for some compelling litigation in the near future.

This article is reprinted with permission from the December 10, 2007 issue of The Legal Intelligencer. Copyright 2007 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.

 
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