2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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In Pennsylvania Medical Society, the Commonwealth Court dealt with the Health CareProvider Retention (“HCPR”) program, which funded MCARE abatements. In 2004, HCPR’stransferred $100 million from its account to the MCARE Fund, and in 2005, HCPR transferred$330 million. MCARE continued to grant abatements after 2005, but HCPR did not make anytransfers to the Fund after 2005, instead, petitioners claim, crediting “the abatements, withoutreceipt of HCPR Account funds, against funds already in the MCARE Fund, thereby improperlypaying the assessment abatements with MCARE funds supplied in part by Petitioners, rather thanwith funds transferred from the HCPR Account.” Petitioners therefore brought suit. TheCommonwealth Court found that the Commonwealth had a duty to fund MCARE abatementsthrough transfers from the HCPR Account to the MCARE Fund, basing this finding on astatutory interpretation of the HCPR statute. The Court also found that, as the undisputed factsshowed that the Commonwealth failed to fully fund the MCARE abatements, there were nogenuine issues of material fact and that petitioners were entitled to judgment as a matter of law.Finally, the Court addressed the Commonwealth’s assertion that the elimination of the HCPRprogram and Account, passed in late 2009, abolished petitioners’ right to relief. The Court heldthat vested interests cannot be extinguished by subsequent legislation, and as petitioners had avested right to HCPR funds in the amount of the abatements granted prior to the program’sabolishment, petitioners were still entitled to relief.B. Rules1. Certificate of MeritThe court promulgated Rules 1042.1 through 1042.8, which relate to the requirementfound in new Rule 1042.3 that a certificate of merit must be filed within sixty days of the filingof the Complaint in any professional liability case in which it is alleged that a professionaldeviated from the required professional standard. In a medical malpractice case, the certificateof merit must state one of three things: 1) that an “appropriate licensed professional” hassupplied a written statement that the treatment or work at issue was below the required standardof care and caused the plaintiff harm, or 2) the claim that the defendant deviated from thestandard of care is based solely on allegations that other professionals for whom that defendant isresponsible deviated from the required standard of care, i.e. the claim is one of vicarious liability,or 3) that expert testimony is not needed for prosecution of the claim.Pennsylvania Rule of Civil Procedure 1042.3, entitled “Certificate of Merit” provides:(a) In any action based upon an allegation that a licensed professionaldeviated from an acceptable professional standard, the attorney for theplaintiff, or the plaintiff if not represented, shall file with the complaint orwithin sixty days after the filing of the complaint, a certificate of meritsigned by the attorney or party that either(1) an appropriate licensed professional has supplied a writtenstatement that there exists a reasonable probability that the care, skill orknowledge exercised or exhibited in the treatment, practice or work that isthe subject of the complaint, fell outside acceptable professional standardsand that such conduct was a cause in bringing about the harm, or108
(2) the claim that the defendant deviated from an acceptableprofessional standard is based solely on allegations that other licensedprofessionals for whom this defendant is responsible deviated from anacceptable professional standard, or(3) expert testimony of an appropriate licensed professional isunnecessary for prosecution of the claim.(b)(1) A separate certificate of merit shall be filed as to each licensedprofessional against whom a claim is asserted.(2) If a complaint raises claims under both subdivisions (a)(1) and(a)(2) against the same defendant, the attorney for the plaintiff, or theplaintiff if not represented, shall file(i) a separate certificate of merit as to each claim raised, or(ii) a single certificate of merit stating that claims are raisedunder both subdivisions (a)(1) and (a)(2).(c)(1) A defendant who files a counterclaim asserting a claim forprofessional responsibility shall file a certificate of merit as required bythis rule.(2) A defendant or an additional defendant who has joined a licensedprofessional as an additional defendant or asserted a cross-claim against alicensed professional need not file a certificate of merit unless the joinderor cross-claim is based on acts of negligence that are unrelated to the actsof negligence that are the basis for the claim against the joining or crossclaimingparty.(d) The court, upon good cause shown, shall extend the time for filing acertificate of merit for a period not to exceed sixty days. A motion toextend the time for filing a certificate of merit must be filed by the thirtiethday after the filing of a notice of intention to enter judgment of non proson a professional liability claim under Rule 1042.6(a) or on or before theexpiration of the extended time where a court has granted a motion toextend the time to file a certificate of merit, whichever is greater. Thefiling of a motion to extend tolls the time period within which a certificateof merit must be filed until the court rules upon the motion.Pa.R.C.P. 1042.3 (Official notes omitted).A separate certificate of merit must be filed as to each professional against whom a claimis asserted. Also, if the claim is one of vicarious liability, a certificate of merit must be filed as109
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EMTALA CASES ......................
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Filing an Affidavit of Non-Involvem
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II.PROFESSIONAL LIABILITY - AN OVER
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The Superior Court reversed the tri
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to a third party pursuant to the st
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After approximately five months, De
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learned the day after the surgery t
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conduct to the delay in colon cance
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court admitted the expert’s testi
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(b)(c)other reasonable causes, incl
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corroborated his testimony. The cou
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husband’s estate. Plaintiff alleg
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Other notable federal cases arising
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The Superior Court found that in re
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§ 1303.512(b). The court, however,
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In Neidig v. United States, No. 07-
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Additionally, the Supreme Court not
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were not indicated for her conditio
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surgeon is the same as it would be
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It should be noted that the Superio
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Finally, the court held that the tr
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The Supreme Court of Pennsylvania r
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nurses deviating from applicable st
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certainty, the court reviews expert
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Under Pennsylvania law, the Court n
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testimony, Defendant presented his
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Following Cooper v. Roberts, 286 A.
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Plaintiff developed chronic diarrhe
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where payment is made by Medicaid w
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accomplished. In Valles v. Albert E
Page 64 and 65: In 1980, the Pennsylvania Superior
Page 66 and 67: Plaintiff had a routine monitoring
Page 68 and 69: Plaintiff’s Contract ClaimsThe Co
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Page 72 and 73: unit to assure post-surgical patien
Page 74 and 75: sliced his wrist and arm with a raz
Page 76 and 77: licensed professionals for whom the
Page 78 and 79: (c)Limitations of Corporate Neglige
Page 80 and 81: Even more recently, our Superior Co
Page 82 and 83: (a)HMO IssuesIn McClellan v. Health
Page 84 and 85: affidavit submitted by Defendants o
Page 86 and 87: treatments while at VA’s faciliti
Page 88 and 89: [s]ubstantively, we believe that a
Page 90 and 91: The party claiming the benefit of t
Page 92 and 93: deprive (him) of civil rights guara
Page 94 and 95: found that the District Court was w
Page 96 and 97: With respect to fraudulent concealm
Page 98 and 99: would be applied in situations wher
Page 100 and 101: they had not raised them in the cou
Page 102 and 103: (a)Informed ConsentUnder MCARE, a p
Page 104 and 105: civil enforcement provisions and ma
Page 106 and 107: MCARE also changes the manner in wh
Page 108 and 109: whose death, in 2005, was allegedly
Page 110 and 111: vicariously liable if the plaintiff
Page 112 and 113: health center or its equivalent or
Page 116 and 117: to any professional who is alleged
Page 118 and 119: Since the 2005 amendments, there ha
Page 120 and 121: ule, but who intentionally ignores
Page 122 and 123: the original Complaint was delivere
Page 124 and 125: foreclose all challenges against th
Page 126 and 127: number of boxes), which was support
Page 128 and 129: questions of professional judgment
Page 130 and 131: deviated from any professional stan
Page 132 and 133: The Third Circuit affirmed the Dist
Page 134 and 135: claims and cross-claims remain agai
Page 136 and 137: By an Amendatory Order dated March
Page 138 and 139: The court acknowledged that there i
Page 140 and 141: apply and that the trial court misa
Page 142 and 143: Barbados had enough litigation-spec
Page 144 and 145: E. Preemption of Vaccine Design Def
Page 146 and 147: 2. Pa. R. Civ. Pro. 1036.1 - Reinst
Page 148 and 149: Barrick, at *34-35.Furthermore, the
Page 150 and 151: (b) the utility of the defendant’
Page 152 and 153: 2006). In this case, Plaintiffs bro
Page 154 and 155: B. Elements of a Cause of Action fo
Page 156 and 157: decision in Muhammad precluded Mr.
Page 158 and 159: considered speculative “only if t
Page 160 and 161: underlying cause of action involved
Page 162 and 163: In Capital Care Corp., the Superior
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The court found, however, to state
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of reasonable diligence. The standa
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not be set aside. On July 7, 2005,
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complete bar to recovery. Since a l
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On appeal, Plaintiffs claimed that
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In Liggon-Redding, 659 F.3d at 265,
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elieved of those minimum standards
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elevant to the proceedings, the com
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establish professional misconduct b
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Upholding the Superior Court’s Or
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Id.Rejecting revocation and suspens
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order as a sanction under Rule 4019
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{1009912]182
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2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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